Should an employer be legally responsible for an assault upon a customer by an employee? On the facts reported in the case of Mohamud v WM Morrisons PLC, the Court of Appeal found not. However, cases of vicarious liability are very fact specific, so this is unlikely to offer much comfort to employers.
Vicarious liability is the concept that a third party can be responsible for the torts (i.e. a civil wrong or wrongful act, whether intentional or accidental, from which injury occurs to another) carried out by someone they have ‘control’ over. So – a parent can be liable for the torts of his or her child, and an employer can be responsible for the torts of an employee.
In the Mohamud case, Mr Mohamud visited a Morrisons supermarket in Birmingham. Specifically, he went into the petrol station which also functioned as a convenience store. Having checked his tyre pressure, he then asked one of Morrisons’ employees – Mr Khan – if it was possible to have some documents printed from a USB stick. Mr Khan responded in an abusive manner, racially abused Mr Mohamud, and then subjected him to a serious assault. This assault left Mr Mohamud with epilepsy.
The case came before the Birmingham Civil Justice Centre on 7th November 2012. The trial judge found that Mr Mohamud was blameless and had been subjected to a brutal and unprovoked attack. However, the Judge found that Morrisons were not liable because there was an insufficient connection between the violent assault and Khan’s employment. The Judge also noted that Khan had received specific training prohibiting confronting customers who were abusive or angry (which Mr Mohamud was not).
Mr Mohamud appealed against the decision of the trial Judge and the case came before the Court of Appeal on 16th January 2014. The court upheld the previous court’s decision, but in doing so examined the authorities on vicarious liability. The court drew a distinction between the Mohamud case and situations where the employee’s duties involve an element of keeping order – for example, nightclub bouncers. The Court of Appeal also had regard to a case from the Canadian Supreme Court in 1999 called Bazley v Curry. That case set out a series of questions to consider when deciding whether to impose vicarious liability:
(a) The opportunity that the enterprise afforded the employee to abuse his or her power
(b) The extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee)
(c) The extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise
(d) The extent of power conferred on the employee in relation to the victim
(e) The vulnerability of potential victims to wrongful exercise of the employee’s power
In Mr Mohamud’s case, the Court of Appeal found that there was nothing extra – over and above the employment – which might justify imposing vicarious liability upon Morrisons. Had Mr Khan been employed as a security guard or in some position that involved exercising control over the public, the outcome might have been rather different.
One cannot but help feeling sorry for Mr Mohamud as his chances of obtaining redress from Mr Khan must be slim to say the least. However, the decision reached is undoubtedly correct in law.
What can employers take from this case? It demonstrates the importance of clearly defining the employee’s job role in their contract of employment as this may reduce the possibility of the court finding the extra ‘something’ to justify the imposition of vicarious liability. Clear and unambiguous disciplinary rules which set out what is (and is not) acceptable behaviour would also be helpful to an employer in these circumstances.
If you have any queries about either this or any other employment related matter, please contact Andrew Buckley or call 01234 270600.