Employers Vicarious Liability - "Close Connection" Test
2016
On 2 March 2016 the Supreme Court published their judgement in the case of Mr A M Mohamud (in substitution for Mr A Mohamud (deceased)) (Appellant) v WM Morrison Supermarkets plc (Respondent).
This case concerned the actions of a Morrison’s employee working as petrol station kiosk attendant for the supermarket in Small Heath, Birmingham. Although each case would be considered on its own merits this judgement has highlighted the potential liability an employer may carry for his employees. This case has a particular impact on what is referred to as the “close connection” test
Facts
In this case Mr. Mohamud (who was of Somali origin) entered a Morrisons site which included a petrol station and a kiosk where customers pay for their purchases. Having parked his car he entered the kiosk to ask whether he could print some documents from a USB stick. There were two or three members of staff present, one of whom was Mr Amjid Khan, who was behind the kiosk desk. Mr. Khan was employed by Morrisons to see that petrol pumps and the kiosk were kept in good order and to serve customers.
Mr Khan, who was behind the counter, replied by saying "We don't do such s**t". Mr Mohamud protested at being spoken to in that manner. Using alleged foul, racist and threatening language, Mr Khan ordered the claimant to leave. Mr. Mohamud returned to his car followed by Mr Khan. Before Mr. Mohamud could drive off, Mr Khan opened the passenger door, told him in threatening words never to return and punched him on the left temple. Mr. Mohamud got out and walked round to close the passenger door when Mr Khan subjected him to a serious attack. In carrying out the attack Mr Khan ignored instructions from his supervisor, who came on the scene at some stage and tried to stop Mr Khan from behaving as he did.
The trial judge concluded that the reasons for Mr Khan's behaviour were a matter of speculation but Mr. Mohamud himself had said and done nothing which could be considered abusive or aggressive.
The trial judge’s decision
The trial judge expressed great sympathy for Mr. Mohamud but concluded that Morrisons was not vicariously liable for Mr Khan's unprovoked assault. His principal reason was that although Mr Khan's job involved some interaction with customers and members of the public who attended the kiosk, it involved nothing more than serving and helping them. There was not a sufficiently close connection between what he was employed to do and his tortious conduct for his employer to be held vicariously liable, applying the "close connection" test. A further reason given by the judge was that Mr Khan made a positive decision to come out from behind the counter and follow the claimant out of the kiosk in contravention of instructions given to him. This view was upheld in the Court of Appeal.
Supreme Court’s decision
The Supreme Court has unanimously overturned these decisions and allowed the Claimant’s appeal and held Morrisons vicariously liable for the actions of its employee, Mr Khan.
When applying the “close connection” test the court must ask what function or field of activities has been entrusted by the employer to the employee (i.e. what was the nature of his job). This is to be viewed broadly. Second, the court must decide whether there was a sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable.
Mr Khan’s job to attend to customers and respond to their inquiries. His conduct in responding to the Mr. Mohamud’s request with abuse was inexcusable, but interacting with customers was within the field of activities assigned to him by his employer. What happened thereafter was an unbroken sequence of events. The connection between the field of activities assigned to Mr Khan and his employment did not cease at the moment when he came out from behind the counter and followed the Claimant onto the forecourt. The Supreme Court gave two reasons for drawing this conclusion. First, that it is not correct to regard Mr Khan as having metaphorically taken off his uniform the moment he stepped out from behind the counter - he was following up on what he said to the Claimant. Secondly, when Mr Khan followed the Claimant to his car and told him not to come back to the petrol station, that was not something personal between them, but an order to keep away from his employer’s premises. In giving the order he was purporting to act about his employer’s business.
Implications
The leisure, retail and hospitality industries employee an enormous number of people whose job it is to interact with members of the public such as reception, till, waiting and bar staff. This case may bring a greater number of occasions when employers are vicariously responsible for the criminal actions of their staff.