It is a well-settled principle that an employer is liable for the acts and omissions of his employees whilst they are acting in the course of their employment. Historically this has been subject to the caveat that where the employee does something which is not part of his job and goes on a “frolic of his own” the employer cannot be found liable for his acts or omissions.
However, when it comes to the liability by employers for the actions of their employees the legal tide is changing. In 2012 the Supreme Court issued an opinion in relation to cases raised against the Institute of the Brothers of Christian Schools (“The Christian Brothers case”) in relation to abuse suffered by pupils. In that case, the Supreme Court adopted the approach that the concept of vicarious liability involved a two-stage test. Firstly it was necessary to consider the relationship between the employer and wrongdoer to see whether it was one which was capable of giving rise to liability on the part of the employer. Secondly, it was necessary to consider the connection that linked that relationship and the wrongful act. Therefore, even where on the face of it, it appeared an employee was “on a frolic of his own” in that he was not doing something he was employed to do, if a sufficiently close connection between the employment relationship and the wrongdoing could be established this would give rise to liability by the employer for the employees actions.
Supreme Court Ruling
This approach was recently extended further by the Supreme Court in 2016 in the case of Mohamud v William Morrisons Supermarkets Plc. Mr Mohamud visited a Morrison Supermarket and Petrol Station in Birmingham in March 2008. In the petrol station there was a kiosk which served the petrol station and also performed the function of a small convenience store. Mr Mohamud, who was of Somali descent, entered the kiosk and politely asked aa Morrisons’ employee, Mr Khan, if there was a printing facility and if it was possible to print off some documents stored on a USB stick. Mr Khan responded in an abusive fashion including racist language. After being abused, Mr Mohamud left the kiosk and walked back to his car. He was followed by Mr Khan who opened the front passenger door and partly entered the vehicle. Mr Khan shouted violent abuse at Mr Mohamud and told him to get out of his car. Mr Mohamud was punched to head by Mr Khan and when he got out of his car to close the passenger door he was again attacked by Mr Khan. As a consequence of the attack, Mr Mohamud suffered serious injuries.
The court required to consider whether Morrisons could be liable for Mr Khan’s assault on Mr Mohamud. The court at first instance and the appeal court both dismissed the claim. Both felt that rendering an employer liable for an assault carried out by an employee was a step too far.
However, the Supreme Court thought otherwise. The Supreme Court looked at the close connection test and explained that two matters had to be considered. Firstly, what functions had been entrusted by the employer to the employee and secondly was there a sufficient connection between the employee’s wrongful conduct and the position for which he was employed to make it right for the employer to be fixed with liability for his actions.
In Mr Mohamud’s case, Mr Khan’s was to attend to customers and respond to their enquiries. While answering Mr Mohamud’s requests in a foul-mouthed way was inexcusable it was within the field of activities assigned to him. What happened after that was an unbroken sequence of events. Therefore the Supreme Court held that it wasn’t right to regard Mr Khan as having metaphorically taken off his uniform when he followed Mr Mohamud onto the forecourt and assaulted him. Furthermore, in ordering Mr Mohamud off the forecourt Mr Khan was ordering him to keep away from his employer’s premises and reinforcing that order by violence. Therefore in doing so he was purporting to act in furtherance in his employer’s business. Therefore while this was a gross abuse of his position it was in connection with the business in which he was employed and Morrisons were held liable for his actions.
Where once Mr Khan would have been regarded as being off on a frolic of his own and Morrisons would have escaped responsibility, there has been a significant shift in the way cases such as this are being viewed by the courts. While an injured person may previously have been unable to seek redress directly against the employee who may not have funds to pay damages the door is gradually being opened to allow them to look to the employer.
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