On 2 March 2016 the Supreme Court handed down judgment in the case of Mr A M Mohamud (in substitution for Mr A Mohamud (deceased)) v WM Morrison Supermarkets plc [2016] UKSC 11, which overturned the previous decisions at first instance and of the Court of Appeal and found the Defendant, Morrison Supermarkets, vicariously liable for the actions of its employee, Mr Amjid Khan.

We are currently acting for a number of clients who have been contacted by Operation Elveden in connection with the unlawful misuse of their private information which was sold by public officials to the tabloid press. This is an important decision for establishing vicarious liability in these cases.

Mr Khan was employed by the Defendant to ensure that its petrol pumps and kiosks at a petrol station forecourt in Small Heath, Birmingham were kept in good running order and to serve customers.

On 15 March 2008 the Claimant, Mr A Mohamud, asked Mr Khan if he could print some documents from a USB stick. Mr Khan responded with:“we don’t do such sh*t”. The Claimant objected to being spoken to in this manner and Mr Khan ordered the Claimant to leave the premises using“foul, racist and threatening language”.

Mr Khan then followed the Claimant to his car and before the Claimant could drive away Mr Khan opened the passenger door to prevent him from doing so. Again Mr Khan told the Claimant never to come back to the premises. The Claimant got out of his car to shut the passenger door and was assaulted by Mr Khan.

The Claimant, and subsequently his family after his death (from an unrelated cause), brought proceedings against the Defendant on the basis that it was vicariously liable for the actions of its employee. At first instance the trial judge dismissed the Claimant’s claim because he considered that there was an insufficiently close connection between what Mr Khan was employed to do and the assault. The Court of Appeal upheld this decision.

The Claimant appealed to the Supreme Court and his appeal succeeded. The Claimant’s legal team argued that the current test for vicarious liability was flawed and the court should apply a new broader test. They argued that in place of the “close connection” test, as applied by the first instance judge and the Court of Appeal, the courts should look at whether a reasonable observer would consider the employee to be acting in the capacity of a representative of the employer at the time of committing the tort.

The Supreme Court rejected this argument but found on the facts and following the current “close connection” test that the Defendant should be held responsible for Mr Khan’s actions.

In doing so the Supreme Court gave some helpful guidance on the“essence” of the “close connection” test, albeit also warning of the risks of“attempting to over refine”. Lord Toulson explains that the court must consider the following two questions:

  1. “The first question is what functions or “field of activities” have been entrusted by the employer to the employee, or, in everyday language, what was the nature of his job.”
  2. “Secondly, the court must decide whether there was 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 under the principle of social justice…”

Following this two stage analysis the Supreme Court held that Mr Khan’s response to the Claimant’s request to print documents (however foul mouthed) was within the “field of activities” assigned to him. He was after all attending to a customer and responding to a customer’s enquiries.

Then Mr Khan followed the Claimant out onto the forecourt, opened the passenger door to his car and told him to keep away from the Defendant’s premises, which he then reinforced with violence. He did not metaphorically remove his uniform when he followed the claimant out of the shop and he purported to be acting in respect of his employer’s business.

Lord Toulson was at pains to stress that it is neither here nor there that Mr Khan appeared to be motivated by personal racism rather than a desire to benefit his employer’s business. The Defendant entrusted Mr Khan with serving customers and it is just that the Defendant should be held responsible for Mr Khan’s abuse of his position.

This case does not change the test for vicarious liability. It does, however, provide very useful guidance on whether a tort committed by an employee is so closely connected with his employment as to make it just to hold the employer liable.