Specialist
In the case of Mohamud v Wm Morrisson Supermarkets [2016] the UK Supreme Court has held the defendant company liable for the actions of an employee.
The facts
In March 2008 the claimant attended a Morrisons petrol station in Birmingham. While there he asked if it would be possible to print some documentation from a USB stick. Mr. Khan, an employee who was working behind the counter, used racist and rude language and refused the claimant’s request before asking the claimant to leave. As the claimant left, Mr. Khan followed the claimant to his car and opened the passenger door. The claimant asked Mr. Khan to close the door at which point Mr. Khan launched a serious assault on the claimant, knocking him to the ground and punching and kicking him despite Mr. Khan’s supervisor telling him to stop.
Decision
At the trial and first appeal, the court held Morrisons as not vicariously liable for Mr. Khan’s actions on the basis that there was not a sufficiently close connection between what Mr. Khan was employed to do and his unprovoked attack on the claimant.
However, on a further appeal to the UK Supreme Court, it was held that Morrisons was vicariously liable for the actions of Mr. Khan in attacking the claimant. The Court found that Mr. Khan’s job was to serve customers and to respond to their enquiries and, although Mr. Khan’s behaviour was a gross abuse of his position, his actions were within "the field of activities" assigned to him in his employment. The court also held that there was an "unbroken sequence of events" which led to the attack.
The Court further held that Mr. Khan’s motive was irrelevant: he was entrusted to deal with members of the public during his employment. The Court therefore held Morrisons responsible for Mr. Khan’s abuse of that trust.
The Irish position
In Ireland, under common law, employers are vicariously liable for the acts and/or omissions of their employees which occur in the course of the employees’ employment.
In addition, under the Employment Equality Acts 1998-2011, employers will be vicariously liable for discriminatory acts of employees whether such acts are done with or without the employer’s knowledge or consent. However, employers can avoid liability where they can prove that they took reasonable steps to prevent the discriminatory act.
Comment
The decision of the UK Supreme Court illustrates the broad approach which the courts take to the close connection test. However, it is important to bear in mind that the court considered what was just in the particular circumstances and acknowledged that future decisions will require an evaluation of facts on a case-by-case basis. Nevertheless, the decision acts as a stark reminder to employers that they can be held vicariously liable for the acts of their employees.
Contributed by Catherine O’Flynn & Aedín Brennan of William Fry.