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By Ali Qassim
April 11—Employers will find it hard to deny responsibility for any crimes committed by staff at work following a recent ruling by the U.K. Supreme Court, according to an employment attorney.
The Supreme Court found that VW Morrison Supermarkets plc held so-called “vicarious liability” for an employee’s physical attack on a customer, overturning two earlier decisions in favor of the supermarket chain (Mr A M Mohamud v WM Morrisons Supermarkets plc, UKSC 11, 3/2/16).
The attack, which took place in 2008, occurred when Somalian-born Ahmed Mohamud entered a Morrison’s petrol kiosk and asked kiosk attendant Amjir Khan whether he could print some documents for him from a UBS stick, the ruling said. After Khan ordered the customer to leave, using foul, racist and threatening language, he followed Mohamud to his car, punching and kicking the Somalian in the head. Mohamud later died of an illness unrelated to the attack.
“The Supreme Court's finding that an employer should be liable for its employee's act of extreme violence upon a customer suggests that in the future, it will be very difficult for any employer to deny liability for the act of its employees,” Rachel Farr, senior employment lawyer at London-based attorney firm Taylor Wessing, told Bloomberg BNA.
Prior to the Supreme Court's ruling, the England and Wales High Court dismissed Morrison’s culpability—a decision later upheld by the Court of Appeal–because the court “considered that there was an insufficiently close connection between what Mr. Khan was employed to do and his . . . conduct in attacking the Claimant,” Judge John Dyson said.
The so-called “close connection test” is central to deciding the extent of an “employer’s vicarious liability”–in this case Morrisons'–“for an assault carried out by an employee,” Supreme Court judge Roger Toulson said.
“The attraction of the close connection test,” which “has now been repeatedly applied by our courts for some 13 years,” according to Dyson, is that “it is firmly rooted in justice.” It asks “whether the employee’s [action] is so closely connected with his employment as to make it just to hold the employer liable.”
Referring to Khan’s actions in following the victim to the car, Toulson said he did “not consider that it is right to regard him as having metaphorically taken off his uniform the moment he stepped from behind the counter. He was following up on what he had said to the claimant” earlier in the kiosk. “It was a seamless episode.”
“Secondly, when Mr. Khan followed the claimant back to his car and opened the front passenger door, he again told the claimant in threatening words that he was never to come back to the petrol station,” Toulson said. “This was not something personal between them; it was an order to keep away from his employer’s premises, which he reinforced by violence.”
Toulson concluded that “in giving such an order [Khan] was purporting to act about his employer’s business. It was a gross abuse of his position, but it was in connection with the business in which he was employed to serve customers. His employers entrusted him with that position and it is just that as between them and the claimant, they should be held responsible for their employee’s abuse of it.”
Commenting on the Supreme Court’s judgment, attorney Farr told Bloomberg BNA that “vicarious liability is a strongly policy-driven area of the law” and “there is no doubt that here the victim had been seriously injured and had a right to be compensated.”
“The facts of are shocking, but the case is an illustration of how broadly the existing ‘close connection' test can be interpreted,” Farr emphasized.
Although the Supreme Court’s decision will make it more problematic for employers in the future to reject responsibility for an employee’s action, Farr pointed out that the Supreme Court “acknowledged that the principles . . . are by their nature too imprecise to apply easily to borderline cases.”
“The outcome will depend upon a court making a full and careful analysis of the facts and circumstances of each case,” Farr said.
Although Morrisons originally “offered a settlement option to Mr. Mohamud,” a spokeswoman for the supermarket chain told Bloomberg BNA April 8 that Mohamud “and his legal team wanted to progress a case which involved widening the rules on vicarious liability—where a company can be held liable for the actions of an individual member of staff.”
While the Supreme Court “has not changed the law on vicarious liability,” the spokeswoman said, “we accept that it has now said we should now pay the previously agreed damages."
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