A warning has been issued from law firms following a Supreme Court ruling on a Morrison’s employee attack, which increases the scope of employer liability, say BizSmart Select Member Kirsten Cluer of Cluer HR.
Employers could be deemed legally responsible for a far greater range of staff behaviour (i.e. wider than vicarious liability) according to legal experts after the Supreme Court ruled that a supermarket firm was accountable for one of its employees attacking a member of the public.
A panel of five judges found that Morrison’s was liable for the actions of Amjid Kahn in punching and kicking a man known as A Mohamud, on the forecourt of one of its petrol stations in Birmingham.
The judgment overturned the outcomes of a previous trial and subsequent Court of Appeal hearing, both of which dismissed the claim, saying it failed the “close connection” test. This test, from case law, suggested there needed to be a close link between misconduct and the nature of employment for vicarious liability to be established. But the Supreme Court ruled that there was a connection between the attack and Kahn’s job of serving customers.
“His employers entrusted him with that position, and it is just that as between them and the claimant, they should be held responsible for their employee’s abuse of it,” said the official judgment by Lord Toulson on behalf of the panel.
What Does It Mean For Employers?
Martin Pratt, a partner in the employment law team at legal firm Gordon Dadds, said the decision “massively increased employers’ potential liability for their employees’ actions”.
“Before today, an employer would only have been liable for an assault like the one in this case if it were done while the employee was performing a task as part of his employment – an overly aggressive nightclub bouncer for example,” added Pratt. “This case changes all that completely.”
Pratt told People Management that firms could potentially be held responsible for the behaviour of anyone in a customer-facing role.
What Can Employers Do To Prevent This Kind of Incident?
“Employers will have to consider more training and more background checks,” he said. “Perhaps you will have to make it clear that certain activities are not in the scope of employment – don’t touch customers, for example. In my view, it could form a defence to say that activities were contrary to what an employer told the employee to do.”
What Actually Happened?
The Supreme Court heard that Mohamud asked at the petrol station whether he could print some documents from a USB stick. In an account by Mohamud, Kahn replied using foul language and, when Mohamud – of Somalian origin – protested about this, Kahn used racist and threatening language before following Mohamud to his car, opening the front passenger door and telling him never to come back. Eventually, Kahn is said to have subjected him to a serious attack, ignoring instructions from his supervisor.
Lord Toulson said that telling the claimant that he was never to come back to the petrol station did not represent “something personal between them” and was instead “an order to keep away from his employer’s premises, which he reinforced by violence”.
He added: “It was a gross abuse of his position, but it was in connection with the business in which he was employed to serve customers.” Damages are to be confirmed.
In a statement, Morrison’s said: “When this appalling incident happened, we were horrified and dismissed Amjid Khan. We then offered a settlement option to Mr Mohamud, but he and his legal team wanted to progress a case which involved widening the rules on vicarious liability – where a company can be held liable for the actions of an individual member of staff. While the Supreme Court has not changed the law on vicarious liability, we accept that it has now said we should pay the previously agreed damages.”
If you’d like to discuss staff training or other solutions to help prevent this type of incident and reduce the risk of employer liability affecting you, please get in touch with this BizSmart Select Member on 01386 751740 or firstname.lastname@example.org