04 May 2016

Employer can be liable for employee’s abusive behaviour towards third party

Employers should make clear to employees what they can and cannot do when ‘acting about their employer’s business’, as they can be held liable if employees behave badly or abusively.

A driver stopped at a supermarket garage and asked a garage employee if he could print some documents from his USB memory stick. The employee was very rude and racially abusive and ordered the driver off the premises. As the driver was going back to his car the employee followed him, opened his passenger door and punched him. When the driver got out to close the car door the employee attacked him again.

The driver claimed that the supermarket was ‘vicariously’ liable for its employee’s behaviour and should compensate him.

An employer is vicariously liable for an employee’s actions if there is a sufficiently close connection between the employee’s actions and their employment.

The Supreme Court said that the relevant questions were:

  • What was the nature of the employee’s job? i.e. what functions or ‘field of activities’ were entrusted to the employee?
  • Was there a sufficient connection between the employee’s actions and his field of activities to make it just to hold the employer responsible for those actions?

The Court found that:

  • The employee’s field of activities included attending to customers and responding to their enquiries;
  • Although asking the driver to leave the premises was ‘inexcusable’ it was still within the ‘field of activities’ assigned to the employee;
  • The employee’s subsequent violent behaviour formed part of a ‘seamless episode’ flowing from that: he had not ‘metaphorically taken off his uniform the moment he stepped from behind the counter’;
  • His behaviour was therefore sufficiently connected to his field of activities to make it just to hold the supermarket responsible for his behaviour.

Specifically, the court 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. In giving such an order he 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.”

The Court also held that the employee’s motive was irrelevant – even though his behaviour seemed to be racially motivated.

Recommendation

Employers should ensure their policies, procedures and staff training make clear to employees the boundaries of permissible behaviour when going about their employer’s business, to reduce the risk of the employer being liable if employees exceed those boundaries.

Case ref:

Mohamud v WM Morrison Supermarkets Plc (Rev 1) [2016] UKSC 11

If you wish to discuss this topic further, please contact Tom Watkins on 0113 297 8069 or at tawatkins@shulmans.co.uk.