Yesterday the Supreme Court ruled that Morrisons was vicariously liable for the unprovoked assault by one of its employees, Mr Khan on a customer.
This case will undoubtedly send shockwaves through employers – how can it be possible that an employer is at fault if one of its employees steps out from behind the counter, follows a customer to the forecourt, climbs in his car and attacks him?
Here’s a quick recap on vicarious liability. In essence, it means that the employer can be liable for the acts of its staff, provided that there is a close connection between the act and their employment. The defence that is often successfully run is that the employee stepped out of his role and went off on “a frolic of his own”.
Has that changed substantially? No. The Lords made it clear that the same test of “close connection” will continue to apply and that is made up of two parts:
- What was the nature of the employee’s job? Note that this needs to be looked at broadly.
- Based on “social justice”, was there a close enough connection between that job and what the employee then did to make it right that an employer is to blame? This has been applied before in many cases – where there is damage, somebody should take responsibility.
Having settled that test (and rejected an alternative suggested by the victim’s lawyers), the Supreme Court explained that each case of this nature must be considered on its own facts. It is not possible to establish set principles because of the wide range of circumstances that might apply.
And that is where the Supreme Court disagreed with the judges who had looked at the case to date.
In this case, the employee’s job was to look after customers, answer their queries and serve them. Mr Khan, in the course of his job, was abusive to the customer, asking him to leave. The Lords said that this was within the scope of his job and what he did next was “a seamless episode”; he carried on with his approach to the customer, repeating that the customer should leave and never come back. The crucial fact found in this case, in my view, is that Mr Khan at that stage was issuing an instruction on behalf of Morrisons – i.e. not to come back to his employer’s site. And for that reason, his conduct was one sequence of events, for which Morrisons were found liable.
The question for employers now will be how to protect themselves from such a liability. Whilst training will undoubtedly help, sometimes you simply cannot predict how people will react.