A landmark legal case: Miller Samuel Hill Brown

A landmark legal case

A landmark legal case with potentially far reaching implications for employers recently hit the headlines and here, Marie Macdonald, Head of Employment Law with Miller Samuel Hill Brown, explores the case.

The Supreme Court recently delivered a decision on vicarious liability which may be of some concern to employers. In A Mohamud v WM Morrison Supermarkets plc, Morrisons was found vicariously liable for an assault by one of their employees on a customer.

The Supreme Court recently delivered a decision on vicarious liability which may be of some concern to employers. In A Mohamud v WM Morrison Supermarkets plc, Morrisons was found vicariously liable for an assault by one of their employees on a customer.

The Background
Mr Mohamud had entered a Morrisons’ petrol station kiosk to ask if he could print documents. He was served by a Mr Khan, who responded aggressively and with racially offensive language. Mr Khan then followed Mr Mohamud back to his car, opened the passenger door, punched him and told him not to return. When Mr Mohamud got out the car to close the passenger door, Mr Khan began punching and kicking him on the ground.

Both the judge at first instance and the Court of Appeal held that the actions of Mr Khan went beyond the scope of his employment and Morrisons were not liable, but the Supreme Court disagreed. They confirmed the existing test for imposing vicarious liability and clarified that there are two considerations to be made:

1. To consider the ‘field of activities’ assigned to the employee, which is to be considered broadly, and;
2. Whether there is a sufficient connection between these activities and the wrongful act to make it just that vicarious liability is imposed.

The Court held that, as Mr Khan’s exchange with Mr Mohamud had occurred as a result of his being employed to serve customers, he had been acting in connection with his employment. He purported to act on behalf of his employer when he threatened Mr Mohamud not to return. The chain of events was not broken by Mr Khan choosing to leave the kiosk and he did not “metaphorically take off his uniform” as Morrisons had sought to argue. Morrisons had entrusted Mr Khan with his position and could be held liable for his abuse of it. This was the case even though he was instructed by his supervisor to stop, and was subsequently subject to Morrisons’ disciplinary procedure and dismissed for gross misconduct.

Potential Consequences
This case may be of some concern, as it arguably extends the scope of what is deemed to be a close connection. In the past, employers have successfully argued that an employee was on “a frolic of their own”: carrying out acts for their own personal reasons which are beyond the scope of their employment. While Mr Khan’s motivation appears to have been his own racial prejudice, the Court held his motive was irrelevant and his conduct was sufficiently connected to his employment as to make it just to hold Morrisons liable.

However, this does not mean that an employer will be held liable in every case of assault by an employee, or indeed other case where an employee causes loss or injury to a customer, as decisions on vicarious liability depend greatly on individual circumstances. However, it is worth considering how to implement robust training and customer service standards to ensure employees in customer facing roles behave appropriately.”

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Miller Samuel Hill Brown