The Supreme Court has ruled that the well-known supermarket Morrisons should be held vicariously liable for a violent assault carried out by one of its employees on a customer.
Mohamud v WM Morrison Supermarkets plc.
On 15 March 2008, Mr Mohamud called at a Morrisons petrol station in Birmingham. He entered the filling station and approached Mr Khan who worked in the kiosk. Mr Mohamud asked Mr Khan if it would be possible to print some documents from a USB stick he was carrying with him. Mr Khan (one of three members of staff on duty) replied by saying “we don’t do such s**t.” Mr Mohamud protested at being spoken to in such a manner and Mr Khan, using foul and racist language, ordered Mr Mohamud to leave.
Mr Mohamud left the kiosk and returned to his car but was pursued by Mr Khan. Mr Mohamud got into his car and prepared to drive away but before he could, Mr Khan opened the passenger side door and punched Mr Mohamud in the head. Mr Mohamud got out of his car and was subjected to a serious attack by Mr Khan, involving kicks and punches whilst Mr Mohamud was curled up on the petrol station forecourt trying to protect his head from the blows. Mr Khan’s supervisor came to the scene and asked Mr Khan to stop, an instruction he ignored.
Mr Mohamud brought a personal injury claim for the assault against Morrisons and the issue arose as to whether Morrisons was vicariously liable for Mr Khan’s violent acts.
The trial judge’s decision
The judge expressed great sympathy for Mr Mohamud but concluded that Morrisons was not vicariously liable for the actions of Mr Khan that day. Although Mr Khan’s job involved some interaction with customers, it involved nothing more than serving and helping them. The judge decided that there wasn’t a sufficiently close connection between Mr Khan’s job role and his wrongdoing to make Morrisons liable.
The Court of Appeal’s decision
The Court of Appeal (CA) upheld the original decision in that Mr Khan’s actions failed the “close connection” test. The CA decided that Mr Khan was not given duties involving a possibility of confrontation or placed in a situation where an outbreak of violence was likely and the fact that his job involved interaction with customers was not enough to render Morrisons liable for his violence toward Mr Mohamud.
Mr Mohamud appealed to the Supreme Court
The Court explained that the “close connection” test can be interpreted widely and rests on two questions;
What is the nature of the job or field of activities involved (looking at it broadly)?
Is there sufficient connection between the position held and the wrongful conduct to make it just and reasonable for the employer to be liable?
Mr Khan’s job involved attending to customers and responding to enquiries. When the assault occurred, Mr Khan was answering Mr Mohamud’s request. The Court found that pursuing Mr Mohamud out of the kiosk did not break the close connection with Mr Khan’s duties. He had not taken off his uniform to pursue a personal matter; he was ordering Mr Mohamud to keep away from his employer’s premises. He was purporting to go about his employer’s business. The Court found that the violence which took place was carried out in connection with the business of serving customers.
The Supreme Court therefore allowed the appeal, finding that the acts of Mr Khan were sufficiently connected to his employment. It was just and reasonable that Morrisons should be vicariously liable for his acts.
The Court acknowledged that the legal test for vicarious liability was not precise but is nevertheless ‘good law’.
This case is an important reminder to employers about the extent to which they can be liable for the acts of their employees. Whilst it will be difficult to predict (and therefore prevent) such acts, to reduce the likelihood of such incidences occurring, employers should ensure that they have robust disciplinary rules that spell out a “zero tolerance” approach towards acts of violence within the workplace, whether towards customers or colleagues.
If you have any queries relating to vicarious liability or the conduct of your employees, please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.