A recent Supreme Court decision has highlighted the vicarious liability that retailers can have as a consequence of their staff’s behaviour. It also has particular implications for retailers who trade at petrol filling stations.
In the case of Mohamud v WM Morrison Supermarkets plc, the Supreme Court ruled that WM Morrison was vicariously liable, as an employer, for an unprovoked attack carried out by one of its staff on a customer at a petrol filling station where Morrisons had a store.
Vicarious liability is a form of strict, no-fault liability for wrongful acts or omissions committed by another person. In the context of employment, this involves an employer being held liable for the wrongs committed by an employee where a sufficient connection with employment can be established. This may arise even if the employer itself is not in the wrong, as we have seen from this case.
The Morrisons employee - Amjid Khan - was responsible for attending to customers, serving at the kiosk and ensuring that the petrol pumps and kiosks were running efficiently. He was on duty when Ahmed Mohamud visited the site and asked if it would be possible to print some documents from a USB stick. Khan quickly became abusive and asked the customer to leave the site. This eventually resulted in the Morrisons employee seriously assaulting Mohamud on the forecourt.
When Mohamud brought his personal injury claim, it was held that there was not a sufficiently close connection between Khan's wrongdoing and his employment. Khan's actions were deemed beyond the scope of his employment. This decision was upheld by the Court of Appeal before being challenged again.
When The Supreme Court considered the case it allowed the appeal and adopted the traditional approach established in the 2001 case Lister v Hensley Hall to determine whether Morrisons should be held vicariously liable for Khan's actions. The Lister test asks the question whether the connection between the employment and the wrongful act or omission is so close that it would be just and reasonable to impose liability.
Using this approach the decision was reached that as Khan was employed to attend to customers and as he was purporting to act about his employer's business in attempting to remove Mohamud from the premises, there was a strong enough connection to hold WM Morrison Supermarkets plc vicariously liable for Khan's actions and the abuse of his position.
The facts of this case are pretty unique and there is very little that an employer can do to protect itself against a rogue employee once that employee is in place, but prudent steps are:
- Be rigorous in your recruitment assessment of employees
- Make sure that there are clear policies in place dealing with discrimination and behaviour standards both relating to internal and external practices
- Provide regular training to all employees, with more frequent training for those dealing direct with the public
- Where possible deploy employees in pairs to regulate each other's behaviour
- Provide incentives for employees to adopt high standards in their roles