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On or Off Duty? An Update on the Law of Vicarious Liability…

Vicarious liability is a subject most employers are concerned with given the potential ramifications when successfully applied. It acts as a common law principle of strict, no fault liability for wrongs committed by another person but importantly, in an employment relationship, it involves making an employer liable for the wrongs committed by an employee if there is a significant nexus with their employment, even where the employer is not to blame.   The ‘acid-test’ for whether vicarious liability applies involves a two-stage test:

  1. Is there a relationship between the wrongdoer (often the employee) and the person alleged to be liable (the employer) which is capable of giving rise to vicarious liability?
  2. Is there a connection between the employment and the wrongful act or omission?

It’s important that both stages are satisfied in order for vicarious liability to apply.

In the recent case of Mohamed v Morrison Supermarkets PLC [2014], the Court of Appeal held that on the facts, a supermarket could not be held liable for an assault by a petrol station assistant on a customer.

In 2008, a customer (the Claimant) visited one of the Respondent’s supermarket petrol stations in Small Heath in Birmingham and asked Mr Khan whether it would be possible to print off some documents stored on a USB stick that the customer was carrying.  Mr Khan, the employee, responded abusively, using racist language and proceeded to follow the customer to his car where he subjected him to a serious assault. During the course of this incident, Mr Khan’s supervisor told the employee to return inside.

Birmingham County Court held that the Claimant had failed to satisfy the second part of the above test. The Court of Appeal upheld this finding on the basis that the assault had taken place at a time when the employee had specifically been told not to carry out the attack and that  ‘for no apparent reason’ Mr Khan had proceeded with the attack purely for reasons of his own. The mere fact that there is contact between a sales assistant and a customer (authorised by an employer) was not sufficient of itself to allow the employer to be vicariously liable for Mr Khan’s actions.

Practical Implications

The View welcomes this reasoning. Clearly, where an employee proceeds to carry out a wrongdoing that is clearly outside the scope of his or her employment, it would be neither fair nor just to hold an employer accountable for the same. In the above case, Mr Khan’s duties did not involve any element of keeping order over customers and what he did went well beyond his employment duties.  The question of whether vicarious liability applies will always turn on whether the connection between the wrongdoing and employment is sufficiently close to make it just to hold the employer liable and all cases of this nature very much depend on the individual facts.

For further information on the issues within this article, please contact a member of the Spencer Wyatt team on 020 7925 8080.

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