Is an employer legally responsible for an assault upon an innocent customer by an employee?
It would appear that the answer is yes, according to the Supreme Court who this week unanimously gave judgment for the appellant in the case of Mr A M Mohamud (in substitution for Mr A Mohamud (deceased) v WM Morrison Supermarkets plc UKSC 11.
The Facts
On 15th March 2008 the claimant entered the respondent’s premises in Small Heath, Birmingham which include a petrol station and a kiosk where customers pay for their purchases.
The Claimant entered the kiosk to ask whether he could print some documents from a USB stick. Mr Amjid Khan was employed by the respondent to serve customers at the petrol station kiosk, he refused the claimant’s request, before ordering the claimant to leave the premises whilst using foul, racist and threatening language. The claimant returned to his car and was followed by Mr Khan, the claimant attempted to driver off but before he could do so, Mr Khan opened the passenger door, told the claimant in threatening words never to return and punched him on the left temple. The claimant got out and walked round to close the passenger door when Mr Khan subjected him to a serious attack.
As a result of the attack, the claimant brought proceedings against Morrisons, the Respondent, on the basis that it was vicariously liable for the actions of its employee Mr Khan. The trial judge dismissed the claim because he considered that Mr Khan’s actions took place for reasons purely of his own and were beyond the scope of his employment and found therefore that Morrisons were not vicariously liable for the assault. The claimant appealed this decision.
Grounds of Appeal
The claimant’s main argument was that the current test for vicarious liability, the “close connection test”, was outdated. It was argued that the courts should apply a broader test of “representative capacity”.
Alternatively, it was argued that the claimant should in any event have succeeded because he was a lawful visitor to the premises, and Mr Khan was acting within the field of activities assigned to him in dealing with the claimant. The proposed new test was rejected, however the appeal was allowed.
The Decision
In giving the lead judgment the President, Lord Toulson, restated the “close connection” test laid down in Lister v Hesley Hall Ltd UKHL 22 in terms of a two fold test:
- The first part of the test requires the court to ask what functions or “field of activities” have been entrusted by the employer to the employee, or, to simplify, what was the nature of his job. This question must be addressed broadly.
- Secondly, the court must decide whether there was a 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 under the principle of social justice.
Therefore it was decided that in the present case it was Mr Khan’s job to attend to customers and to respond to their inquiries. His conduct in answering the claimant’s request in a foul mouthed way and ordering him to leave was inexcusable but within the “field of activities” assigned to him. What happened thereafter was an unbroken sequence of events. Mr Khan was not regarded as having metaphorically taken off his uniform the moment he stepped from behind the counter.
Further, the quarrel was not something personal between them, Mr Khan was telling the claimant to keep away from his employer’s premises, which he reinforced by violence. In giving such an order he was purporting to act about his employer’s business.
It was a gross abuse of his position, but it was in connection with the business in which he was employed to serve customers. His employers entrusted him with that position and it is just that as between them and the claimant, they should be held responsible for their employee’s abuse of it. Mr Khan’s motive was irrelevant. It was neither here nor there that he was motivated by personal racism rather than a desire to benefit his employer’s business.
The outcome of this appeal will have surely send potential employers a wake-up call, they can no longer rely on the argument that an employee was acting for entirely personal reasons or were “on a frolic of their own” if they committed a crime.
Furthermore, this ruling makes it easier for customers of a business who are assaulted by staff – or affected by staff who commit any unlawful act whilst on duty – to hold the employer business liable.
This case will further be applied in cases of work related stress and assaults in the workplace where issues arise between two employees. At Oakwood Solicitors, we often deal with cases involving one employee assaulting another and Defendants often defend such cases on the basis of vicarious liability.
The above case however is further nail in the Defendant’s coffin and in our opinion rightly so, Employers have the benefit of an employees service but must all be responsible where employees act negatively or aggressively whilst in the course of their employment.
