Out-Law News 4 min. read
03 Mar 2016, 5:04 pm
A panel of five judges ruled that there was a sufficiently "close connection" between Amjid Khan's employment at a Morrisons petrol station and the attack on the customer, Ahmed Mohamud. Khan was employed to "attend to customers and respond to their inquiries"; making his interaction with Mohamud "within the field of activities assigned to him by his employer", Lord Toulson said.
Mohamud's legal team had attempted to argue that a new test was needed for 'vicarious liability', which is the means by which a company can be held responsible for the actions or omissions of its employees or agents. Lord Dyson said that although the 'close connection' test was "imprecise", this was "inevitable" given "the infinite range of circumstances where the issue of vicarious liability arises".
Mohamud died in 2014 of an unrelated illness, but his family had continued the case on his behalf.
Health and safety law expert Kevin Bridges of Pinsent Masons, the law firm behind Out-Law.com, said that although this case related to an employer's vicarious liability under the civil law, the fact that it involved a "racially aggravated assault" meant that it also had implications for criminal and regulatory cases.
"The position now is that provided an employee is broadly acting within the nature of their job and provided there is a sufficient connection between their position of employment and their unlawful conduct, the possibility exists that their employer could be held vicariously liable in civil proceedings for any resultant harm caused to others – irrespective of whether the action is motivated by personal factors rather than as part of furthering the employer's business," he said.
"The judgment is plainly of relevance in the civil law personal injury arena for all employers whose employees interact with members of the public and it is not authority for the proposition that criminal liability will necessarily follow. However, employers may need to revisit risk assessments and control measures in light of the decision to ensure all sensible and reasonable precautions have been taken to mitigate the likelihood of such events occurring," he said.
In this case, the employment relationship between Khan and the supermarket was enough to satisfy the first part of the test. This left the court to decide whether the connection between that employment relationship and the attack was enough to satisfy the second part. In a separate judgment handed down at the same time, the Supreme Court ruled that a relationship other than one of employment could also give rise to vicarious liability, when it found that the Ministry of Justice was liable for an injury caused by the negligent act of a prisoner carrying out paid work in a prison kitchen.
The attack in the present case, which took place in 2008, happened after Mohamud asked Khan whether it would be possible to print some documents from a USB stick which he was carrying. Khan, who was behind the counter, used "foul, racist and threatening language" in response and told Mohamud to leave.
Khan then followed Mohamud when he left the petrol station kiosk to return to his car and, before Mohamud could drive away, opened the front passenger door and told him never to come back. When Mohamud told Khan to get out of the car and shut the door, Khan instead "punched the claimant on his left temple" and then continued to attack him after he got out of the car to shut the door himself. The trial judge concluded that the reasons for Khan's behaviour were "a matter of speculation" and that Mohamud had "said and done nothing which could be considered abusive or aggressive".
In the course of its arguments before the Supreme Court, Mohamud's lawyers had argued that the 'close connection' test traditionally applied by the courts in vicarious liability cases should be replaced with a broader "representative capacity" test. The decisive question under this new test should be "whether a reasonable observer would consider the employee to be acting in the capacity of a representative of the employer" when committing the acts in question, they said. However, the Supreme Court disagreed and ruled that the existing test was sufficient for a finding of vicarious liability against Morrisons.
"In the present case it was Mr Khan's job to attend to customers and to respond to their inquiries," said Lord Toulson in his leading judgment. "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."
The High Court and Court of Appeal had both accepted an argument by Morrisons that the 'significant connection' ended when Khan came out from behind the counter and followed Mohamud onto the petrol station forecourt. However, Lord Toulson said that Khan was "following up" on what he had said to Mohamud in the kiosk and had not "metaphorically taken off his uniform the moment he stepped from behind the counter".
"[His actions were] a gross abuse of his position, but it was in connection with the business in which he was employed to serve customers," Lord Toulson said. "His employers entrusted him with that position and it is just that as between them and the claimant, they should be help responsible for their employee's abuse of it."
"Mr Khan's motive is irrelevant. It looks obvious that he was motivated by personal racism rather than a desire to benefit his employer's business, but that is neither here nor there," he said.
Civil litigation expert Craig Connal QC of Pinsent Masons said that the decision would also have implications for employers' public liability insurance policies.
"This decision will be welcomed by claimants and regretted by employers who can do nothing to escape the policy of giving the injured party a remedy," he said. "With the boundaries unashamedly vague, disputes will continue."
"We may also see the arrival of a time when, faced with being held liable for a disgraceful prohibited act, an employer will call the employee in and recover what it can from them," he said.