When does an employer have to pay the consequences for their employee’s actions?

Vicarious liability

Vicarious liability is a legal phrase which means the employer is liable for their employee’s actions if those actions are carried out during the course of employment. For example if a lorry driver is involved in an accident while transporting goods and the accident is the driver’s fault, it is likely that the employer will have to pay any liability which arises from the accident. The types of employee conduct that an employer will be liable for continues to widen.

Muhamud v WM Morrison Supermarkets

Facts

There was a recent case involving an employee who was responsible for the running of the petrol pumps and its kiosk at a Morrisons store. When a customer came into the kiosk to pay for his petrol, he was subjected to unprovoked racial abuse by the employee. On returning to his car, the customer was told never to return to the shop by the employee who, by this stage, had followed the customer and had opened the passenger door. When the customer tried to close the door, he was punched in the head by the employee. The customer was punched again after leaving the vehicle to close the passenger door.

Decision

Although there was little doubt that the customer had been wronged, the issue that needed to be decided by the Supreme Court was whether the employee would be liable for any damages, or if it would be the employer. The Supreme Court therefore had to decide if the employee’s conduct could be considered to be within the course of employment. Worryingly for employers it was decided that there was a ‘close connection’ between the employee’s responsibilities and his conduct and his actions were therefore within the course of employment. It was the employee’s job to serve the customer and although his conduct was inexcusable, it came about because of these duties. As Morrisons had trusted the employee with this position, it was held to be fair to hold them responsible for the employee’s abuse of it.

What can we learn?

This is a wake-up call for employers, showing how even inexplicable behaviour can be held to be within the course of employment. In order to give yourself the best opportunity of avoiding this happening to you, you should ensure that line managers know their staff well and review your disciplinary policies to ensure staff are aware of what is (and is not) acceptable conduct. We would be more than happy to give you assistance with this if you like.

Andrew Wallace
Solicitor – Employment Law
@EmpLawyerAndy
www.blackadders.co.uk

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