In Mohamud v WM Morrison Supermarkets plc, the Court of Appeal decided that the employer was not vicariously liable for an employee’s assault on a customer. The fact that the employee was given exposure to customers as part of his duties was not sufficient to impose vicarious liability on the employer.
What does this mean?
There must be a sufficiently close connection between the act in question and the employment for an employer to be vicariously liable, as required by the House of Lords decision in Lister v Hesley Hall Ltd. The Mohamud decision is consistent with the Court of Session’s recent decision in Vaickuviene and others v J Sainsbury plc in which the Court struck out a similar claim against the employer after an employee was murdered by a fellow employee. In both cases the courts found that it was not sufficient that the employer merely provided the opportunity, setting and time for the wrongful conduct to occur and that the independent acts of the employees were not connected to their authorised duties.
What should we do?
Though established in the cases above that limits do exist for when an employer will be liable for an employee’s actions at work, employers must also remember that each case will be considered on its own facts and the “close connection” test is highly fact sensitive. Employers should bear in mind their duty of care to employees and continue to take action where there is a potential threat of violence between employees or between employees and third parties.