Vicarious liability is where an employer can be held responsible for the actions of an employee – but what if the actions of the employee have little or nothing to do with what they are employed to do? Should the employer be held liable and can an employer or other organisation be held responsible for the actions of those who are not its employees?
These issues have been considered by the Supreme Court in two recent cases, which provided an opportunity to ‘take stock’ of the law of vicarious liability and which we take a closer look at below. For an explanation of vicarious liability, see our previous article which can be found here.
1. In the case of Mohamud v WM Morrison Supermarkets a petrol station customer, Mr Mohamud, found himself on the receiving end of physical assault and racist language from a Morrison’s employee, Mr Khan. Mr Khan pursued Mr Mohamud across the petrol station forecourt, punching him and kicking him to the ground. Mr Khan ignored the instructions of his supervisor who tried to stop him.
Mr Mohamud brought a claim against Morrison’s for the injuries he suffered as a result of the assault by Mr Khan. There was no question in this case of there being an employment relationship between Morrison’s and Mr Khan, however the issue arose as to whether there was a sufficiently close connection between what Mr Khan was employed by Morrison’s to do, and his actions against Mr Mohamud, to render Morrison’s vicariously liable.
At first instance, it was held that Morrison’s was not vicariously liable. The trial judge found that the sufficiently close connection test was not met. Mr Mohamud appealed to the Court of Appeal who dismissed his appeal. It was found that whilst Mr Khan’s duties involved interaction with customers, there was not a clear possibility of confrontation, nor did his duties place him in a situation where an outbreak of violence was likely. Therefore, Morrison’s could not be held vicariously liable.
Mr Mohamud’s case was heard by the Supreme Court where it was argued on his behalf (Mr Mohamud had by then passed away from an unrelated illness) that a broader test should be applied i.e. “whether a reasonable observer would consider the employee to be acting in the capacity of a representative of the employer” at the time of committing the unlawful act. The Supreme Court rejected the new test, but allowed the appeal on the basis that Mr Khan’s acts were sufficiently connected to his employment for it to be just that Morrisons should be vicariously liable for his actions.
The Supreme Court confirmed that the test was whether the wrongful acts were so closely connected with employment that it would be just to hold the employer liable. The attack had happened on Morrison’s premises and Mr Khan had ordered Mr Mohamud never to return to his employer’s premises. It was held that Mr Khan was not acting in a personal capacity – he had not “metaphorically taken off his uniform from the moment he stepped from behind the counter.”
2. The case of Cox v Ministry of Justice concerned a prisoner who, in the course of carrying out compulsory work in the prison kitchen, dropped a sack of rice onto the catering manager, resulting in a back injury. The issue to be decided was whether the Ministry of Justice (MoJ) was liable for the prisoner’s negligent actions. Whilst the county court found that the MoJ was not vicariously liable for the prisoner’s actions, because the relationship between the prisoner and the MoJ was not akin to the relationship between an employer and employee, the catering manager successfully appealed to the Court of Appeal. The MoJ then appealed to the Supreme Court, arguing that the relationship between the prison service and prisoners was fundamentally different from that of employer and employee.
The Supreme Court found that it didn’t matter that the prison was not carrying on activities of a commercial nature, that the prison work was compulsory, nor that prisoners received incentive payments below the level of a commercial wage. It was sufficient that the prisoner was carrying out activities assigned to him by the prison service as an integral part of its operation and for its benefit, even though the benefit did not take the form of profit. The prison service, by assigning those activities to him, created a risk of the prisoner committing the negligent acts.
The Supreme Court dismissed the MoJ’s appeal and held that they were vicariously liable for the prisoner’s negligent actions. The court stressed that vicarious liability cannot be avoided by technical arguments about the employment status of the individual who committed the acts.
Whilst these recent cases have not changed the law on vicarious liability, they have broadened the potential circumstances where vicarious liability may be imposed.
The difficulty for employers putting themselves in Morrison’s shoes, is identifying what more could have been done to avoid being held vicariously liable for an unprovoked attack by an employee on a customer. Risk prevention is key and so having adequate training and robust policies in place will help to minimise the risks.
As we explained in our previous article, employers can also be held vicariously liable for discriminatory acts by their employees committed in the course of their employment. With discrimination, however, there is a statutory defence if the employer can show that it had taken all reasonable steps to prevent the discrimination.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).