Earlier this year, the Supreme Court ruled that the supermarket Morrisons was vicariously liable for the actions of an employee who seriously assaulted a customer. Jeff Swales considers the implications for the transport and logistics sector.
What is vicarious liability?
Vicarious liability is the legal responsibility imposed on an employer which makes the employer liable for the actions – including criminal actions – of an employee, which take place during the course of their employment.
Mr Mohamud stopped at a petrol station owned by Morrisons which had a Morrisons supermarket attached to it. The kiosk was manned by Morrisons’ employee Mr Khan. Mr Mohamud went into the shop to ask if it would be possible to print some documents from a usb stick he was carrying. Mr Khan, who was one of three members of staff on duty at the time, replied in rude and abusive terms and, when Mr Mohamud objected to being sworn at, Mr Khan ordered Mr Mohamud to leave, using foul and racist language.
Mr Mohamud left and walked to his vehicle. He was followed by Mr Khan, who told him not to return to the petrol station. Mr Khan then attacked Mr Mohamud, punching and kicking him repeatedly. He ignored attempts by his supervisor to stop the attack.
Mr Mohamud brought a claim against Morrisons on the basis of vicarious liability. In the first instance the Court held that Morrisons was not liable. This decision was upheld by the Court of Appeal which found the necessary close connection test was not met, since Mr Khan’s job duties did not involve the possibility of confrontation or placing him in a situation where an outbreak of violence was likely.
Mr Mohamud appealed to the Supreme Court which allowed his appeal, holding that the actions of Mr Khan were sufficiently connected to his employment.
The Supreme Court said that the courts should continue to take a broad approach to the question of whether the wrongdoing is closely connected to the duties or field of activities of the employee having regard to policy considerations.
It was Mr Khan’s job to attend to customers and respond to their queries. Coming out of the kiosk did not break the close connection with Mr Khan’s duties. It was not a personal matter; he was giving an order to keep away from his employer’s premises and in doing so he was purporting to go about his employer’s business. Whilst it was clearly a gross abuse of his position, the violence which took place was carried out in connection with the business of serving customers.
Where does this leave the law on vicarious liability?
Prior to the Morrisons case, employers would only have been liable for such an assault if it had taken place while the employee was engaged in a task related to his employment.
This ruling extends the scope of vicarious liability and employers can now be held liable for criminal acts performed by their employees at work – even when those acts were personal acts not directly connected to their employment.
Employers cannot avoid vicarious liability by engaging staff on contracts which are not contracts of employment, for example, by using agency staff or labour-only subcontractors. Unless the activities of the wrongdoer can be attributed entirely to the conduct of a recognisably independent business or of a third party, then the person for whom the wrongdoer is actually working is likely to be vicariously liable for their torts.
Businesses need to take particular care when engaging employees or contractors to work on their behalf or for their benefit, and consider how they are trained and supervised.
This is particularly relevant for the operators of goods vehicles whose drivers spend most of their time alone and unsupervised, either driving or at customers’ premises to load and unload, who stay out overnight and who may have to deal with the authorities at the roadside or at ports.
Contracts of employment and job descriptions should specify exactly what the employee’s duties are. Action should be taken if there is any indication that employees are failing to perform their duties or exceeding their authority.
The author, Jeff Swales, is a partner with law firm Andrew Jackson
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