The Supreme Court has considered the test for holding an employer vicariously liable for the wrongdoing of an employee (in this case, an assault carried out by an employee on a customer).
Mr Mohamud visited a petrol station operated by Morrison Supermarkets and asked an employee, Mr Khan, if it was possible to print some documents from a USB stick. Mr Khan responded using racist and abusive language and asked Mr Mohamud to leave the premises. He then followed Mr Mohamud to his car, carried out a violent attack and told him never to return to the petrol system.
The trial judge considered that there was not a sufficiently close connection between what Mr Mohamud was employed to do and his wrongdoing for his employer to be held vicariously liable. This was because Mr Khan’s job was restricted to serving customers and overseeing the petrol pumps and kiosk. Further, Mr Khan’s decision to leave the kiosk and follow Mr Mohamud, despite being told by his supervisor not to follow him, was based on his own independent reasons, which were beyond the scope of his employment.
The Court of Appeal agreed that Mr Khan was not given duties which involved a clear possibility of confrontation simply because his employment involved interaction with customers.
Mr Mohamud appealed. He argued that there should be a new broader test of vicarious liability. The question to be determined should be whether a reasonable observer would consider the employee to be acting in the capacity of a representative of the employer at the time the wrongdoing is committed.
The Supreme Court rejected the proposed test. It analysed the current test by going back to its roots in the Middle Ages and considering the cases that have since helped shape the test to its present form. However, it took a different view on how the close connection test should be applied on the facts of this case. While noting from recent case law that the test is imprecise, this is inevitable given the infinite range of circumstances where the issue of vicarious liability arises. In the simplest terms, the court must consider: a) the nature of the employee’s role and b) whether there is a sufficient connection between the employee’s role and his wrongful conduct to make it just for the employer to be held liable.
Applying these principles, the Supreme Court held that Morrison Supermarkets was liable for the acts of Mr Khan. It was not correct to regard Mr Khan as metaphorically removing his uniform the moment he stepped away from the kiosk; he was following up on what he had said to Mr Mohamud. This was a continuous sequence of events. When Mr Khan followed Mr Mohamud to his car, he told him to never return to the petrol station and carried out a vicious attack. While this was a gross abuse of his position, it was in connection with his role of serving customers. He was therefore purporting to act about his employer’s business.
While the Supreme Court was not prepared to modify the close connection test, it appears to have significantly broadened the scope of circumstances in which employers will be vicariously liable. Previously, an employer was not vicariously liable for the acts of its employee simply because the nature of the employment relationship allowed the employee the opportunity to commit wrongful conduct. There needed to be a closer connection, such as a clear possibility of violence or confrontation. Now it seems that this additional hurdle has been removed. There is also the possibility that an employer may be vicariously liable for acts done by an employee at a later time, or outside the workplace, if there is a continuous sequence of events which leads there from the workplace.