A recent Supreme Court decision has confirmed that an employer will be held liable for any damage or injury caused by its employees where there is a clear connection between the actions of the employee and the work that he is employed to carry out.

Facts

In this somewhat unusual case, Mr Khan, an employee of Morrisons Supermarkets who worked in one of the company’s petrol stations, assaulted a customer in what seemed to be an entirely unprovoked attack. The incident started with a verbal attack in the petrol station kiosk, following which Mr Khan followed the customer out to his car on the forecourt and physically attacked him as he tried to get into his car and drive away.

The customer brought a claim for personal injury against the company on the basis that it was responsible for the actions of its employee and so liable for the injury he had suffered.

The company argued that it could not be held responsible for Mr Khan’s actions. Mr Khan had acted far outside the boundaries of what was anticipated in his role, which was to serve customers, oversee the kiosk, and see that the petrol pumps were kept in good running order. It was also argued that even if the company was responsible for Mr Khan’s verbal abuse inside the kiosk, it could not be liable for what happened when Mr Khan left the kiosk – his place of work – and assaulted the customer in his car.

The High Court and the Court of Appeal found in the company’s favour on the basis that there was not a sufficiently close connection between Mr Khan’s actions and his employment.

Supreme Court

The Supreme Court, however, disagreed. The Court confirmed that the correct test is whether or not the unlawful act of the employee is so closely connected with the employment that it would be fair and just to hold the employer vicariously liable – the close connection test. Applying that test to the facts of this case, the Court held that when one took a broad approach to the question of what Mr Khan’s job entailed, it was clear that the close connection test was satisfied.  Mr Khan was employed to attend to customers and answer their enquiries. The assault started with a customer coming into the kiosk and making an enquiry – exactly what Mr Khan was employed to do. Mr Khan did not stop carrying out his duties when he left the kiosk to pursue the customer to his car. The purpose of that pursuit was to tell the customer to leave the premises and this was something that Mr Khan purported to do on his employer’s behalf. Even though Mr Khan had acted in a way which was wholly unacceptable to his employer, the assault which took place was carried out in connection with the business of serving customers. It followed that the company was vicariously liable for the injury caused to the customer.

Comment

Employers cannot legislate for the rare occasions when employees go completely off script and, as this case demonstrates, even if the employee’s actions are clearly an abuse of his position, the company may still be liable.  There is no reasonable steps defence as there would be where an employee perpetrates an act of discrimination against a colleague. All employers can do is to make sure they have clear policies about what is and is not acceptable conduct and monitor their employees’ performance to minimise the risk of unauthorised and unlawful conduct  taking place.

Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 2 March 20916