The Supreme Court (the highest court we have) has this week considered whether Morrison's was responsible for an allegedly unprovoked attack by a Morrison's employee on a customer at a Morrison petrol station. Although an unusual case which no doubt turned on its own facts, it gives employers important guidance on the scope of the "close connection" test - which is essentially the test the courts use to determine whether an employer is responsible for (and therefore liable for) the acts of their employees.

What happened in this case?

Mr Mohamud had parked his car and entered the kiosk where Mr Khan worked to ask if some documents could be printed from a USB stick.  After receiving a rude reply from Mr Khan, Mr Mohamud returned to his car. He was followed out by Mr Khan who, allegedly unprovoked, opened the passenger door, told him in threatening words never to return and punched him. Mr Mohamud then walked round to close the door when Mr Khan subjected him to a serious assault. Mr Mohamud had not done anything aggressive or abusive.

Mr Mohamud brought proceedings against Morrison claiming it was responsible for the actions of Mr Khan. His claim was rejected by the trial judge and the Court of Appeal on the basis the actions of the employee were not sufficiently closely connected with his employment that it would be just to hold Morrison liable. The case was then appealed to the Supreme Court.

The Supreme Court decided that Morrison was liable. In doing so, the Court confirmed that there was nothing wrong, as such, with this well established "close connection" test. But, in this case, the Court said it has to consider two matters:

  • What function or field of activities has been entrusted by the employer to the employee i.e. what was the nature of the job?  This has to be addressed broadly. 
  • Is there sufficient connection between the position in which Mr Khan was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice?

In applying this test, the Court noted that Mr Khan's job was to attend to customers and respond to their inquiries. His conduct, in answering the query and ordering the customer to leave, although inexcusable, was within the field of activities. The fact that he stepped out from behind the counter to deal with the employee, or that the customer got out his car to close his door and was then attacked, did not break that connection (as perhaps it had done in previous cases).  In ordering Mr Khan to get off the premises, it was obvious that his motive was something other than a desire to benefit his employer's business. But that did not matter - his motive was not relevant.

What this case means for employers

Retailers in particular may, at first sight, be alarmed by this case, particularly in view of how it's been reported in the press.  Although this case could be seen as extending the existing test for when an employer is responsible for an employee's actions, it is still quite clear that each case will be determined on its own facts. This case does not mean that any kind of violence in any work-connected assault will end in a successful claim against an employer.  The test will inevitably have some limitations. However, it does serve as a warning to employers that they cannot hide behind rogue employee misbehaviour.   The court will take a broad view of the nature of the job to decide whether an employee's actions were conducted sufficiently closely with their employment.  So, where the employee is entrusted with dealing with customers, as in this case, the employer could well end up shouldering responsibility for the actions of the employee in dealing with and responding to, those customers, however inexcusable.   Employers should therefore ensure that they choose their employees carefully, and also that they make sure appropriate management and supervision is in place.

Mohamud v WM Morrison Supermarkets plc