Legal Corner: Supreme Court rules on vicarious liability

24th Mar 2016

In April 2014 I wrote about two cases considered by the Court of Appeal which dealt with the vicarious liability of employers – where an employer is held responsible for the acts or omissions of another person. This arises where two conditions are met there is a relationship of a type capable of giving rise to vicarious liability between the perpetrator and the employer alleged to be liable, and a close connection between that relationship and the act in question. The decisions in both cases were appealed to the Supreme Court, who this month has delivered its judgments.

In Mohamud v WM Morrison Supermarkets Plc [2016] UKSC 11, Mr Mohamud, who was Somali, visited a Morrison’s petrol station and convenience store in Birmingham. He asked the employee at the store, Mr Khan, if it was possible to print off some documents that were on a USB stick he was carrying. Mr Khan responded in an abusive manner, including using racist language. Mr Mohamud left the store without retaliating.

Mr Khan then followed him to his car where he subjected Mr Mohamud to a serious assault causing significant head, and other, injuries. Mr Mohamud brought a civil claim against Morrison’s alleging that they were vicariously liable for the assault committed by their employee.

The Court of Appeal had considered the fact that Mr Khan did not have a responsibility to maintain order with customers, not were his actions motivated by anything done by Mr Mohamud. What he did was purely for his own reasons. Therefore they had found that there was not a sufficiently close connection between the assault and the employment such that it would be fair and just to hold Morrison’s liable. The Supreme Court, however, disagreed; it was part of Mr Khan’s job to interact with customers. It was for this reason that Mr Mohamud had sought his assistance to print some documents.

Mr Khan’s conduct thereafter was an unbroken sequence of events. When he stepped out from behind the counter and followed Mr Mohamud out of the shop, he was acting upon what he had said in the shop and therefore it would not be correct to say that from that point on he, metaphorically speaking, ‘removed his uniform’.

Moreover, he then gave Mr Mohamud a direct order to keep away from Morrisons’ premises, thereby purporting to act on behalf of his employer. The Supreme Court therefore held that there was a sufficiently close connection between the assault on Mr Mohamud and Mr Khan’s employment such that Morrisons should be liable for the injuries sustained.

In Cox v Ministry of Justice [2016] UKSC 10, Ms Cox worked as the catering manager of HM Prison Swansea. Her team included 20 prisoners, who were paid to work in the kitchen. Usually food supplies would be delivered to the ground floor of the prison and then transported to the first floor kitchen by lift. On the day in question, the lift was faulty so the supplies had to be taken up the stairs.

A prisoner carrying a heavy load dropped one of the sacks he was holding, which burst open spilling rice everywhere. Ms Cox instructed everyone to stop until the spillage was cleared. She bent down to prop up the damaged sack to prevent more rice spilling. As she was about to stand up, another prisoner who had ignored her instruction attempted to carry some food supplies past her and in so doing, dropped a sack onto her back causing her injury.

Ms Cox’s claim against the MOJ failed initially but was allowed by the Court of Appeal who held that although the prisoners were not employees per se, the work that they did was required and would otherwise have been carried out by employees, given that food preparation was clearly part of the business of the MOJ.

The MOJ appealed on the basis that the prisoners were required to work in the kitchens as part of their rehabilitation and that they had no interest in furthering the objectives of the prison service such that the MOJ should be liable for their actions.

However the Supreme Court disagreed, and stated that working in the kitchens meant that prisoners were integrated into the operations of the prison, and their work was of direct and immediate benefit to the prison service itself. They also clarified that it was not only employees for whom an employer could be liable for, but anyone who undertook activities that were integral to the business they operated. The payment of a wage to that person was not an absolute requirement either.

Both cases appear to widen the scope of an employer’s liability for the actions of others, and employers therefore need to be mindful of these decisions when managing issues that arise in the workplace. In particular, the decision in Mohamud appears to reduce the strength of the connection required between the role of the employee and their actions. The decision in Cox also widens the pool of people for whom an employer might be liable. This decision may, therefore, have far reaching consequences.

Safia Tharoo, Barrister, 42 Bedford Row, London

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