In a Judgment issued yesterday, the Supreme Court held that Morrison Supermarkets were liable for the conduct of an employee responsible for serving customers at a petrol station and ensuring that the forecourt and kiosk were kept in good order.  When a customer enquired as to whether he could print some documents from a USB stick, the employee responded with foul language and abuse. When the customer returned to his car, he threatened him with violence before subjecting him to a serious and unprovoked assault.  The Supreme Court held that there was a sufficiently close connection between what happened and what the attendant was employed to do, overturning the decision of the Court of Appeal.

The decision is Mohamud –v- W M Morrison Supermarkets plc [2016] UKSC 11

Vicarious liability is not new.  There are references in our common law to the reign of Henry IV.  Over the centuries, the law has placed differing emphasis on the employee’s level of authority and the extent to which they were performing their working duties.  This type of employer liability has an underlying social aim.  Claims against the perpetrator are often not worth pursuing and, where there is  a sufficiently close connection, enabling a claim to be pursued against the employer appears fair. 

Landmark cases such as this never seem to concern the normal performance of an employee’s working duties.  As with earlier cases, the employer argued that the conduct was so outrageous that they ought not to be considered liable and the employee exceeded their authority by following the customer out onto the forecourt.  These arguments were upheld at trial and before the Court of Appeal, where one of the Justices regarded assault as a perverse execution of the employee’s duty to engage with customers.  The Supreme Court both reversed these decisions and were unpersuaded by the argument that the more outrageous the conduct, the less likely it should be that the employer is held liable.

In employment law, this is nothing new.  In Jones –v- Tower Boot Company Limited [1997] IRLR 168 the Court of Appeal confirmed that an employer is liable for any unlawful discrimination in the course of employment. This did not depend upon authority or even a close connection.  An Employment Tribunal was quite entitled to find that any conduct was in the course of employment, observing that an employer cannot escape liability by relying upon the nature of the discrimination to argue that they should not be liable.  In Jones an employee was subjected to appalling racist abuse and harassment by his work colleagues and the employer was held to be liable.  The recent decision of the Supreme Court in Mohamud follows the same type of approach.

Discrimination in the workplace is different to other liabilities because the remedy is imposed by statute.  Perhaps the reason why the Court of Appeal rejected this type of argument so long ago in employment law reflects the fact that there is a specific defence available to an employer under the Equality Act 2010.  This was recognised by the Court of Appeal in 1997 and employers were encouraged to use the “reasonable steps” defence.  An employer will not be liable where they can demonstrate that they took such steps as were reasonably practicable to prevent discrimination of the type alleged.  Subsequent appellate decisions confirm that it is not necessary for an employer to take every possible step and the defence may be available where the employer has taken some steps towards compliance because there are only so many measures which can be implemented.  They include:-

  • Publishing a policy of equal opportunities;
  • Otherwise raising awareness of the importance of equality and diversity;
  • Warning the workforce that unlawful discrimination will be treated as gross misconduct;
  • Treating complaints seriously;
  • Conducting investigations with due regard to the victim; and
  • Reviewing the objectives of the policy against complaints and how they were handled on a regular basis.

In our experience, where an employer has evidence that these steps have been taken, coupled with evidence of how supervision works in practice, they will usually be in a position to defend discrimination claims. 

This decision of the Supreme Court reinforces the principle of vicarious liability beyond what employers may expect and in unusual circumstances.  The behaviour of the employee may be quite extraordinary but the employer may still be liable.  This has long been the position in employment law but as far as claims for unlawful discrimination, including harassment and victimisation are concerned, this is not the end of the matter.  Employers can and should take steps to protect themselves from claims, otherwise they will be regarded as vicariously liable for whatever may occur in the course of employment, however unexpected or unforeseen.