Almost exactly two years ago we reported on the Court of Appeal’s decision in Mohamud – v – WM Morrisons Supermarkets. The Court found that Morrisons were not vicariously liable for a serious and unprovoked assault on Mr Mohamud by one of its employees in 2008. This was because there was not a sufficient connection between the employee’s role and his wrongful conduct that it would be “fair and just” to make the employer responsible for it.
However, earlier this week came reports that the Supreme Court (formerly the House of Lords) has overturned that decision. In the process it has seemingly significantly broadened the law relating to the vicarious liability of employers for the wrongful acts of their staff.
I haven’t yet seen a full transcript of the decision but it appears that their Lordships took the view that when considering the proximity of the connection between the role and the conduct, a very broad view of the requirements of the employee’s job had to be taken. Here the attacker was a petrol station cashier with strict instructions from Morrisons not to leave his booth. He did so nonetheless, kicking and punching Mr Mohamud to the ground on the forecourt. That is clearly outside the role of somebody contractually confined to the cashier’s booth and so the Court of Appeal found.
However, the Supreme Court seems to have taken the view that because at its heart the employee’s job was to attend to customers and interact with them as such, that purpose generated by itself a sufficient connection to even unauthorised (indeed, both expressly forbidden and illegal) interactions with them, and that was enough to fix Morrisons with liability.
If these initial reports are borne out by the detail of the judgement, that would suggest that an employee’s responsibility to deal with customers would of itself make the employer liable for pretty much anything he did to them. That would be a worrying decision for any employer with material numbers of customer-facing staff. The Court of Appeal decision made it clear that even an employer’s telling the employee in terms that violent and unprovoked assaults on clients were just not ok would not be sufficient to deflect that liability. I do not yet know if the Supreme Court has qualified this to reflect its broader approach of the question of sufficient connection. Otherwise we have reached the position that it no longer matters how far you train, guide or threaten your front-line staff in relation to their handling of customers, since you will be liable regardless. Even accepting that employers will be insured and that otherwise the innocent victims of employee violence may be left without meaningful recourse, this is still a troubling proposition at law.
One daunting possibility from here is the extension of this generous construction of “connection” to other employees – so long as part of the role is to interact with other employees, on this case, any subsequent treatment of them (however violent or dishonest or warned against) would become the employer’s liability. Surely that can’t be what is intended here.
But what is an employer to do? Even if it took physical precautions to prevent clients against attack from staff instead of the more usual reverse position, that would seem not to be enough to escape vicarious responsibility if one of its employees ran amok regardless. It may also be that the increased risk of legal responsibility which this case suggests will increase employers’ PLI costs.
Sadly Mr Mohamud never saw his moment of his legal glory – he died in 2014 of unrelated causes. However, if this case says what initial reports suggest, his name will nonetheless become familiar to generations of law students to come.