The Supreme Court has ruled in two cases that dealt with the vicarious liability of employers for incidents that took place at work.
Employee's Extreme Acts
In the first case (Mohamud v Wm Morrison Supermarkets plc) the Supreme Court upheld a damages claim brought by Ahmed Mohamud, an innocent customer who suffered serious head injuries in a savage, unprovoked attack in which he was repeatedly kicked and punched by Amjid Khan, a petrol kiosk attendant who was employed by Wm Morrison Supermarkets plc at a branch in Birmingham. The Court found that the supermarket giant was vicariously liable for Mr Khan's appalling behaviour.
Mr Mohamud had gone to the petrol station to check his tyre pressures but had also asked if he could use its facilities to print out some documents from a USB stick. His request was met by a torrent of racist abuse from Mr Khan, who ordered him to leave and never come back. After pursuing him onto the forecourt, he then kicked him repeatedly as he lay on the floor. Mr Mohamud suffered serious head injuries which resulted in him developing epilepsy.
Mr Mohamud sued Morrisons for damages, but had his claim dismissed by a County Court judge. Dismissing his appeal against that decision, the Court of Appeal had ruled that there was an insufficiently close connection between what Mr Khan was employed to do and his conduct in attacking Mr Mohamud for Morrisons to be held vicariously liable for his actions. Mr Khan had acted 'purely for reasons of his own, beyond the scope of his employment'. He had inexplicably attacked Mr Mohamud in direct defiance of instructions 'not to engage in any form of confrontation with a customer, even an angry one'.
Mr Mohamud subsequently died, but his family continued to pursue his case.
In allowing the appeal, the Supreme Court found that there is nothing wrong in the close connection test as such. However, in the present case, the Court had to consider two matters. Firstly, what was the nature of the employee's job and was there sufficient connection between his field of activities and his wrongful conduct for the employer to be held liable for his actions?
The Court noted that it was part of Mr Khan's job to attend to customers, to interact with them and to respond to their inquiries. His conduct was inexcusable and it could not be said that he had metaphorically taken off his uniform the moment he stepped out from behind the counter.
In ordering Mr Mohamud never to return to the petrol station, Mr Khan was purporting to act in his capacity as a Morrisons' employee. His motive in launching the attack was irrelevant and it did not matter whether his actions were driven by personal racism rather than a desire to benefit his employer's business.
The Court's decision has opened the way for Mr Mohamud's estate and dependants to seek substantial compensation in respect of his lost earnings and the pain and suffering he endured before his death. The amount of damages payable by Morrisons has yet to be assessed.
The Sort of Relationship Which May Give Rise to Vicarious Liability
The second case (Cox v Ministry of Justice) serves as a reminder that a relationship other than one of employment can give rise to vicarious liability.
Mrs Cox worked as a catering manager at HM Prison Swansea. She supervised prisoners who worked in the kitchen alongside the catering staff. In the course of taking supplies to the kitchen stores, one of the prisoners, Mr Inder, accidentally dropped a sack of rice on Mrs Cox's back, causing her injury.
She brought a claim against the Ministry of Justice (MoJ).
The County Court found that Mr Inder had been negligent but dismissed the claim on the basis that his relationship with the prison service was not akin to that between an employee and an employer. The Court of Appeal reversed that decision, however.
The Supreme Court dismissed the MoJ's appeal, finding that Mrs Cox was injured as a result of Mr Inder's negligence in carrying out activities assigned to him. The relationship was such that the prison service could be held vicariously liable to her.
In reaching its decision, the Court gave guidance on the sort of relationship which may give rise to vicarious liability in cases where there is no contract of employment:
- The harm caused must have been wrongfully committed by an individual who was carrying out activities that are an integral part of the defendant's business and for its benefit, not that of an independent business of the individual's own or of a third party; and
- The commission of the wrongful act was a risk created by the defendant by assigning those activities to the individual.
In this case, the inmates who were working in the prison kitchen were integrated into the operation of the prison. The tasks assigned to them formed an integral part of the activities of the prison in furtherance of its aims, in particular the provision of meals for prisoners. The prison service placed such prisoners in a position where there was a risk that they might be negligent in carrying out the assigned duties whilst working under the direction of prison staff.
Employers are advised to be vigilant and to act swiftly to deal with any unwanted conduct on the part of employees towards customers or other members of staff. Staff handbooks and policies should be clear that such behavior will not be tolerated. Workers who are not under contract should be made aware of health and safety procedures and other workplace policies and procedures to which they are expected to adhere in carrying out their function.
Employer Escapes Vicarious Liability for Employee's Negligence
A third case on this topic (Fletcher v Chancery Supplies Limited) illustrates that an employer will only be ordered to pay compensation for the negligent acts of their employees if they are working at the relevant time. In determining such cases, the court has to examine the nature of the employee's job, which has to be considered broadly, and whether there is sufficient connection between the employee's position and the wrongful conduct to make it right for the employer to be held liable for the employee's action.
The Court of Appeal found that a salesman who worked for a plumbing business was not acting in the course of his employment when he walked into the path of a cycling policeman.
The policeman suffered serious knee injuries in a fall from his motorised bicycle after the salesman walked across the road through stationary traffic without looking. There was no dispute that the latter was negligent.
When questioned by police after the accident, the salesman gave his nearby workplace as his address. He had been walking towards the shop where he was employed and was wearing his work uniform. In those circumstances, a judge found that he had been acting in the course of his employment and his employer was therefore vicariously liable for the accident.
However, in overturning that ruling and exonerating the employer, the Court noted that the collision occurred 45 minutes after the end of the salesman's shift and that there was no direct evidence that he was still working. It was hardly unusual for him still to be wearing his uniform so soon after his working day had ended and the fact that he gave his employment address to the police was not relevant.
In the Court's view, the factors taken into account by the judge in the lower court did not provide a legitimate basis for concluding that the salesman was still at work at the time of the accident. The Court was therefore bound to find that his action in crossing the road was not sufficiently connected with his job to hold his employer liable for its consequences.
Vicarious Liability Can Extend to Independent Contractors
Companies generally bear legal liability for misdeeds committed by their employees in the context of their work, but does the same apply to self-employed contractors? That was the issue before the Court of Appeal in a group action brought by bank workers who claimed to have been sexually abused by a doctor in the course of pre-employment health checks (Barclays Bank plc v Various Claimants).
Under an agreement with the bank, the doctor had carried out medical assessments and examinations on prospective employees, the majority of them young women, between 1968 and 1984. He has since died, but 126 of those whom he had examined launched proceedings against the bank on the basis that he had subjected them to sexual assaults.
The bank – which neither admitted nor denied that the sexual assaults had occurred –pointed out that the doctor was an independent contractor who had carried out the examinations at his own surgery. In ruling that the bank bore indirect – vicarious – responsibility for his actions, however, the judge in the lower court noted that his alleged victims had been required to undergo the examinations prior to taking up their posts.
In the judge's view, although the bank was an innocent party, it had created the relevant risk when it referred its prospective employees to the doctor, and the alleged sexual assaults were inextricably interwoven with the work the doctor had done for the bank's benefit.
In challenging that ruling, the bank reasserted its argument that the doctor was neither its employee nor was their relationship akin to employment. He was self-employed and had been engaged as an independent contractor. It was submitted that it was preferable to have a 'bright line' test – i.e. a clearly defined rule that the imposition of vicarious liability should not be extended beyond relationships that are, or are close to, employment.
In ruling on the matter, the Court of Appeal noted that use of independent contractors is increasingly prevalent in the modern economy. They often perform operations intrinsic to business enterprises over long periods and are subject to precise obligations and high levels of control. Depending on the particular facts of a case, vicarious liability can thus be extended to such a relationship.
In the particular case, the doctor was deceased and his estate had been distributed. The bank was thus clearly in a better position to satisfy the women's claims if they succeeded. He had examined the women on the bank's behalf and, although they might have had the benefit of being alerted to health problems, the principal benefit was clearly to the bank as their prospective employer.
In dismissing the appeal, the Court noted that the examinations were part of the business activity of the bank and that the risk of wrongdoing had arisen from the bank's engagement of the doctor to perform them. He was paid a fixed fee for each examination and the level of the bank's control over him was sufficiently high to make the bank vicariously liable for his actions.
The Court's ruling has opened the way for the women to pursue their damages claims to trial.