Case update (3): Employers liability – it’s more likely…

unfair-dismissal-250Summary: Is an employer liable for the violent or negligent acts of an employee or individual who undertakes activities that are integral to the business?

Yes, if there is a sufficient connection between the activities and the wrongful conduct, says the Supreme Court in two decisions published on the same day (and by the same judges). These are Mohamud v WM Morrison Supermarkets plc, available here and Cox v Ministry of Justice, available here.

Background:  Vicarious liability is a legal principle which means that one person or organisation can be held responsible for the wrongs committed by another person. In an employment relationship it makes an employer liable for the actions of an employee where there is sufficient connection with the employment, even if the employer itself has done nothing wrong.

Facts:

1 Mohamud v WM Morrison Supermarkets plc:
The employee, Mr Khan was employed by Morrison Supermarkets Plc to work in the kiosk serving customers at a Morrisons’ petrol station on its premises near Birmingham.  Mr Mohamud, a customer, was of Somali origin and entered the petrol station to ask if he could print some documents from a USB stick.

Mr Khan responded using expletives, stating that Mr Mohamud could not print the files at the petrol station. When Mr Mohamud objected to Mr Khan’s use of expletives, Mr Khan told him to leave the premises, using threatening and abusive language. Mr Khan then followed Mr Mohamud out to his car, opened the passenger door and proceeded to assault Mr Mohamud, punching him and kicking him to the ground. In carrying out the assault Mr Khan ignored instructions from his supervisor, who tried to intervene.

Mr Mohamud, the Claimant, brought proceedings against Morrisons on the basis that it was vicariously liable for the actions of Mr Khan, its employee. The judge found that there was an insufficiently close connection between what Mr Khan was employed to do and his attack on Mr Mohamud, so Morrisons was not liable.

The Court of Appeal agreed with the trial judge that Morrisons was not vicariously liable for its employee’s actions. There was not a sufficiently close connection between the assaults and the employment that it would be fair or just to make the employer liable. Mr Khan’s job did not include any element of keeping order over customers. The supervisor had told Mr Khan not to follow Mr Mohamud out of the kiosk and Mr Khan had carried out the attack “purely for reasons of his own”.

The Claimant appealed, challenging whether the “close connection” test was the appropriate standard to apply, and arguing that the claim should have succeeded in any event. The Supreme Court upheld the appeal and found Morrisons vicariously liable for Mr Khan’s actions. The Court identified two matters to consider:

  1. What is the nature of the employee’s job or what field of activities was entrusted to the employee?
  2. Is there sufficient connection between the field of activities carried out by employee and the wrongful conduct for it to be just for the employer to be held liable as a principle of social justice?

In this case the violence was a re-enforcement of Mr Khan’s order to leave the premises which was sufficiently connected to the job assigned to him that the employer should be held responsible.

2 Cox v Ministry of Justice:
Mrs Cox was employed by HM Prison Swansea, supervising both civilian staff and prisoners working in the prison kitchen. She was accidentally injured by the negligence of a prisoner, who dropped a sack of rice on her back.

Mrs Cox brought a claim against the Ministry Of Justice (MOJ). The County Court found that the MOJ was not vicariously liable for the negligence of the prisoner. The decision was reversed by the Court of Appeal, who found the relationship between the prisoner and the prison service was akin to that of employer and employee.

The Supreme Court dismissed the subsequent appeal, again holding the MOJ liable. The Court stated vicarious liability can be established in employment like relationships and not only employer/employee. The Court will give significant weight to two factual elements: (1) harm is wrongfully done by a person who carries on activities as an integral part of the business activities of an organisation and for its benefit; and (2) the risk of the wrongful act occurring was caused by the organisation in assigning responsibility to the wrongdoer.

 

Implications:  These cases are sobering decisions for employers. They illustrate an increasing willingness by the courts to look beyond the traditional view of employment activities and the employer-employee relationship.  In particular, all organisations with customer-facing staff need to assess these staff more carefully to make sure they are sound and reliable. The risk from an employer’s point of view is that any link to an employee carrying out his activities will be sufficient to establish that the employer should be held liable.