Morrisons was found liable this week for the attack of a customer by a member of its staff. What does this mean for retailers?

This week, the Supreme Court found Morrisons vicariously liable for the unprovoked, violent attack on a petrol station customer by an on-duty member of staff.

Put simply, the effect of ‘vicarious liability’ is that the employer stands in the shoes of the primary wrongdoer i.e. the employee at fault.

In order to establish that an employer is vicariously liable for the acts of its employees, the following two-stage test needs to be satisfied:

1. Is there a relationship capable of giving rise to vicarious liability?

2. Is the connection between the employment and the wrongful act by the employee close enough that it would be just and reasonable to impose liability on the employer?

Where there is a clearly defined employment relationship, this first component of the test is relatively easy to satisfy. The Morrisons case focused on the second (more complex) strand of the test.

The Supreme Court decided that, in the circumstances of the case, the actions of the employee were sufficiently connected to his employment to render the employer vicariously liable.

The Court found that the employee’s action in following Mr Mohamud back to his car and demanding that he never return to the petrol station was an order to stay away from his employer’s premises, which he then reinforced through violence. In giving such an order, the employee was “purporting to act about his employer’s business”.

While it was clearly a gross abuse of the employee’s position, it was nonetheless held to be in connection with the business in which he was employed i.e. to serve and interact with customers.

The effect of the Court’s decision

Although the legal test has not changed as a result of this case, the decision (reached on the specific facts of the case) arguably broadens the circumstances in which employers might be vicariously liable for the actions of their employees. This may be the case even where, on a common sense interpretation, the actions appear to be entirely removed from the nature of their employment.

In the Morrisons case, the fact that the employee was required to “attend the customers and respond to their inquiries” meant that his abusive language and request for the victim to leave were, while inexcusable, “within the field of activities assigned to him”.

Many employees in the retail sector interact with customers or suppliers on a regular basis. It would therefore appear that, as a result of this decision, the chance of the employer being liable for even the most reprehensible behaviour by those employees towards customers/suppliers etc has increased.

Although employers are able to bring claims against the employee at fault to recover losses suffered, this is often likely to prove fruitless, particularly in respect of lower paid staff.

An employer’s best approach may therefore be to educate staff on the organisation’s disciplinary rules. If an individual understands the potential consequences of their actions, this should (in most cases) act as an effective deterrent.

  • Tom Stenner-Evans is a senior associate in the employment law team at Michelmores

 

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