A customer at a Morrisons supermarket petrol station entered the payment kiosk and asked the employee there whether it would be possible to print some documents from his USB stick. An unusual request, granted, but not in any way hostile or offensive, so the customer would surely have expected from this request no worse an outcome than a polite refusal.  Instead, he was subjected to aggressive and racist abuse by the kiosk employee, who then followed him out onto the petrol station forecourt, punched him to the ground, and continued to attack the customer while he was curled up on the floor.  A clear fail on the Customer Service module, one suspects.   

The customer brought personal injury claims against Morrisons. Although the incident happened in March 2008, the Court of Appeal has only now, 6 years later, confirmed that the employer was not vicariously liable for the employee’s violent actions.   

The standard test for vicarious liability is whether there is a “sufficiently close connection between the employee’s wrongdoing and the employment that it would be fair and just to hold the employer responsible”.   

Previous cases applying the same test have found the employer responsible where a rugby player punched another player in the opposing team; where a doorman attacked a customer at a nightclub; and even where a factory employee reacted aggressively towards his supervisor on being given an instruction. In those cases, it was decided by the courts that the risk of an attack taking place was reasonably incidental to the type of employment carried on, there being as a minimum a risk of conflict or dispute by the nature of the role, and so there was a sufficiently close connection between the wrongdoing and the employment to hold the employer responsible.  In other words, the actions in those cases were an unauthorised way of doing something the employee was authorised to do, not a total “frolic of his own”.    

The petrol station case, however, draws a line, and indicates that mere interaction in the course of the employment between employees and customers, and similarly, between one employee and another, is not enough of itself to place liability on an employer for an employee’s assaults.  The kiosk employee had no reason for leaving his post to assault the customer and indeed he had been told expressly not to do so.  He attacked the customer for reasons of his own, said the Court, and for no reason connected with his job responsibilities.  If it had been his job to maintain forecourt security and he had attacked the customer because he suspected him of stealing or tampering with the pumps, the outcome would have been different, even if he were told not to do it.   

If the supermarket had been found to be responsible, it would have widened the vicarious liability principle to apply to practically any situation where an employee is expected to interact with customers as part of his job.    

Whilst the Court had a great deal of sympathy for the innocent customer, and acknowledged the temptation to place liability on the insured, and therefore deep-pocketed, supermarket, it must be a relief to employers that the Court resisted this.  But note the seemingly throwaway line in the Judgement: “it was clear that specific instructions from an employee to an employee not to do something unlawful would be insufficient in itself to avoid vicarious liability”.  In other words, employers, you can train staff as much as you want and give them the clearest of instructions, but your exposure if they blow a gasket of this sort will still depend on the closeness of the job on the one hand and the assault on the other.