Many employers may be unaware of the extent to which they can be held liable for the acts or omissions of employees in the ‘course of their employment’ - either at the employer’s premises or during the working day. Such acts or omissions may relate to serious conduct (such as assault), but can also concern harassment, bullying, discrimination or even infringement of copyright.
Some potential liabilities arise under employment law or specifically the Equality Act, but a recent Supreme Court ruling addressing the law of vicarious liability means employers are probably now more likely to be held liable for loss or damage caused by employees. The law surrounding vicarious liability has evolved over time to enable those injured, or out of pocket as a result of employee negligence or other wrong doing, to pursue an employer (who is more likely to be in a position to financially compensate them) for resulting damages. The basic test is that the employee was acting “in the course of their employment” when the incident occurred.
In the case in question the Court heard how a member of the public – Mr Mohamud - entered a Morrisons petrol station kiosk and asked a Morrisons employee if he could print some documents from a USB stick. The Morrisons employee refused, using racist and abusive language. The Morrisons employee then proceeded to follow Mr Mohamud onto the forecourt of the petrol station and attack him. The victim was repeatedly kicked and punched in a ‘brutal attack’. Court documents state a Morrisons supervisor told the employee not to follow Mr Mohamud and attempted to prevent the attack.
Following the attack, Mr Mohamud commenced a claim for compensation against Morrisons based on the principle of vicarious liability.
Both the High Court and the Court of Appeal dismissed the claim. It was determined by the High Court judge that despite the Morrison employee being at work, with his employment therefore providing the opportunity and setting for the act, this was not sufficient for the rule of vicarious liability to apply. Interestingly, at this stage of court proceedings, the judge believed it a step too far to extend Morrisons’ vicarious liability to every case where employees engaged with members of the public, potentially making the employer liable for any assault that arose out of such an interaction. The Court of Appeal upheld the High Court judge’s decision.
The Supreme Court overturned the decision however. Although the act of an employee assaulting a customer is clearly not within the scope of their employment duties, the Supreme Court nevertheless concluded that vicarious liability still arose. Consequently it is likely to be much harder for an employer to raise a valid defence to a vicarious liability action.
Having clear and thorough policies and procedures in place is a good start. It is strongly recommended that employers have equality and diversity policies (covering discrimination, bullying etc), with these regularly brought to the attention of staff. Furthermore, that employers react swiftly and decisively by invoking disciplinary procedures in circumstances where employees may be guilty of threatening or abusive behaviour. Following best practice may in certain circumstances improve an employer’s prospects of successfully defending certain employment tribunal claims (particularly discrimination claims) where it is sought to hold them vicariously liable for the discriminatory acts of other employees.
Be observant. If an employee has demonstrated behaviour that raises concerns, for example using discriminatory or threatening language, consider whether it is appropriate to treat this as a disciplinary matter.
David Dixey is Holmes & Hills Solicitors' Employment Law specialist and he advises and represents employers across Essex and Suffolk.
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