Supreme Court finds employer vicariously liable for employee’s attack on customer

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

The Supreme Court has today overturned the decision of the Court of Appeal in the case of Mr A M Mohamud (in substitution for Mr A Mohamud (deceased)) v WM Morrison Supermarkets Plc and in so doing has held the supermarket chain vicariously liable for the actions of its employee in a vicious unprovoked attack on one of its customers on the forecourt of one of its petrol stations.

Mr Mohamud had been verbally abused by the employee after he had asked at the petrol station kiosk whether he could print some documents he had stored on a memory stick. Despite an instruction from his supervisor to remain in the kiosk, the employee had then followed Mr Mohamud out to his car and proceeded repeatedly to assault him.

The Supreme Court considered and endorsed the existing test to establish vicarious liability as set out in the leading case of Lister v Hesley Hall Limited, broadly that there must be a sufficiently close connection between the wrongdoing and the employment to such an extent that it is fair and just to hold that the employer should be responsible to the victim for the consequences of that wrongdoing.

The Court of Appeal had previously held that Mr Mohamud’s claim failed this test as there was not a sufficiently close connection between the employment and the wrongdoing - the Morrison employee’s actions were his own and not sufficiently connected to his usual duties. This could be contrasted with other cases where an employer has been held vicariously liable for its employee’s wrongdoing where there was a factor in the employment relationship going beyond providing opportunity for and requiring interaction between an employee and the victim - such as an obligation on an employee to keep order in the case of a doorman whose duty is to keep order and discipline.

The Supreme Court disagreed with the Court of Appeal, however, and in doing so examined further the “close connection” test, finding they had to consider firstly what “field of activities” had been entrusted to the employee and secondly whether there was sufficient connection between the position the employee was employed in and the wrongdoing in order to make it right for the employer to be held liable under the principle of social justice. Emphasis was placed on the fact that although the actions of the employee were inexcusable, they were within the field of activities assigned to him - to attend to customers and to respond to their enquiries. The chain of events were unbroken in that the employee’s actions all were in response to Mr Mohamud’s initial enquiry and were purported to be on behalf of his employer - both the fact his actions were a gross abuse of his position and the motive for them was irrelevant.

Practical advice

• The decision has arguably broadened the circumstances in which an employer can be found vicariously liable for the actions of its employees, potentially making it easier for customers and co-workers to claim compensation when they are affected by a member of staff’s unlawful actions.
• Although an employer can be held vicariously liable for acts of discrimination under the Equality Act 2010, there is a statutory defence where, in summary, the employer can show that it took all reasonable steps to prevent the discrimination occurring. There is no such defence in relation to claims in tort such as in the Mohamud case involving a claim for personal injury.