Vicarious liability: the plot thickens

A recent case confirms that there remain some scenarios where employers will not be held liable for the actions of wayward employees.

For an employer to be liable for the negligence of an employee the following three elements must be present:

1.There must be a contract of employment in place between the two parties;

2.The employee must commit a wrongful act, such as an act of negligence; and

3.This wrongful act must be committed in the course of the employee’s employment - known as the ‘close connection’ test.

It is this third criterion which has been the subject of recent debate in the case of Mohamud v Morrison Supermarkets.

Mr Mohamud visited a Morrisons petrol station to refill the air in his tyres.  This done, he went into the kiosk and politely asked the sales assistant, Mr Khan, whether he could print off some documents which were stored on a USB stick.  Mr Khan responded in an overtly aggressive and racist manner, following Mr Mohamud out of the shop and subjecting him to a serious attack, despite a supervisor telling Mr Khan not to leave the shop.

Following the attack, Mr Mohamud sued Morrisons, claiming the supermarket was vicariously liable for the attack on him by its employee.  The question, as alluded to above, was whether there was a sufficiently close connection between the assault and the employment.  If there was, Morrisons would be vicariously liable.

Mr Mohamud’s lawyers argued that Morrisons was vicariously liable, citing earlier case law to support this.  This included the case of Mattis v Pollock, where the employer of a doorman was found to be vicariously liable for the employee’s serious attack on a man who had been refused entry to a nightclub. 

The Court of Appeal did not agree with Mr Mohamud, deciding that Morrisons was not vicariously liable for Mr Khan’s actions.  The court said that the case could be distinguished from earlier case law as Mr Khan’s role did not include exercising authority and keeping order (such as the role of a nightclub bouncer).  In other words, the fact that Mr Khan was a sales assistant, occupying a customer facing role, was of itself not enough to establish a close connection.  In addition, the fact that Mr Khan’s supervisor told him not to leave the premises indicated that Mr Khan has carried out the attack ‘for no apparent reason’ and ‘purely for reasons of his own.’ 

Whilst this decision turned on the facts of the case, employers will surely be relieved to know that the law does not hold them responsible for any and every act that their employees might carry out. 

Sophie Harper
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