InsightsClient Story - Commercial Law - POSTED: March 3 2016
Mohamud -v- WM Morrisons Supermarkets PLC – A Landmark decision on Vicarious Liability
When the Court of Appeal held that Morrisons were not vicariously liable for an assault committed by one of its employees on a customer many legal commentators felt that was the right decision. After all, there are generations of lawyers practising who grew up with the well-established decision in Warren v Henlys Limited (1948) that there would be no vicarious liability if the actions went beyond the scope of his employment.
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Indeed, you would often be wary of taking on any case where an employee had assaulted a customer in any situation other than that of a nightclub doorman or other job that involved keeping order. Many cases have been run and failed on the simple principle that there must be a sufficiently close connection between the wrongdoing and the employment.
That may now change because on 2nd March 2016 the Supreme Court handed down their eagerly awaited judgment in the case of Mohamud –v- WM Morrison Supermarkets PLC
Mr Mohamud was subjected to an unprovoked assault by Mr Khan an employee of Morrisons who was working at their Petrol Station. Mr Mohamud had gone to get petrol but whilst there asked if he could print some documents which were contained on a USB stick. Mr Khan responded in an abusive and racist manner. Mr Mohamud left the kiosk but was pursued by Mr Khan who continued to abuse him. He then punched Mr Mohamud in the head and then further assaulted him with various kicks and punches.
The Supreme Court reached a surprisingly unanimous decision that Morrisons were liable for their employee’s action.
In allowing the appeal they looked closely at the long established two stage test.
The first stage is what was the nature of his job and the Supreme Court believed this could be viewed broadly. The second stage is the court must decide whether there was sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable.
Mr Khan’s job was to attend to customers and respond to their inquiries. His conduct in responding to Mr Mohamud’s request with abuse was inexcusable, but interacting with customers was within the field of activities assigned to him by his employer. What happened thereafter was an unbroken sequence of events. The connection between the field of activities assigned to Mr Khan and his employment did not cease at the moment when he came out from behind the counter and followed the Claimant.
When Mr Khan was ordering Mr Mohamud not to come back to the petrol station that was not something personal between them, but an order to keep away from his employer’s premises. In giving the order he was purporting to act about his employer’s business.
Finally, Mr Khan’s motive in the attack is irrelevant. It did not matter whether he was motivated by personal racism rather than a desire to benefit his employer’s business.
In conclusion, with this Supreme Court decision, nothing has changed yet everything has changed. The established ‘close connection’ test still remains the correct test to apply. The Supreme Court has not sought to interfere with that nor create a new test. However, how this test is now considered will be, in my view, different.
Cases, where an employee attacks someone because of a personal grudge, should still result in a finding of no vicarious liability. However, employers could find themselves vicariously liable for an employee who attacks a customer, especially if their role is to attend to customers and respond to their inquiries.
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