Today the Supreme Court in Mohamud v WM Morrison Supermarkets plc (Respondent)  UKSC 11 handed down its decision on this very question, and re-stated the correct test that needed to be applied.
On 15 March 2008 Mr M entered the Supermarket’s petrol station kiosk where customers pay for purchases and asked whether he could print some documents from a USB stick. Mr Amjid Khan was behind the kiosk desk, employed by the Supermarket to see that petrol pumps and the kiosk were kept in good order and to serve customers. He refused Mr M’s request and was verbally abusive, using racist language. Mr M left the kiosk, and the employee followed him out, told him never to come back to the supermarket and subjected him to a serious assault. There was no evidence that Mr M had provoked the attack.
Mr M brought proceedings against the Supermarket on the basis that it was vicariously liable for the actions of its employee Mr Khan. The trial judge dismissed the claim because he considered that there was an insufficiently close connection between what Mr Khan was employed to do and his tortious conduct in attacking Mr M for the Supermarket to be liable. The Court of Appeal upheld the judge’s decision. Mr M appealed, challenging whether the “close connection” test was the appropriate standard to apply and also arguing that his claim should have succeeded in any event.
The Supreme Court unanimously allowed Mr M’s appeal and held the Supermarket vicariously liable for the actions of its employee, Mr Khan, in attacking him. Lord Toulson gives the lead judgment.
The Court held that the close connection test has been followed at the highest level and there is nothing wrong with it as such. In the present case, the court has to consider two matters. First, the court must ask what function or field of activities has been entrusted by the employer to the employee (i.e. what was the nature of his job). This is to be viewed broadly.
Second, the court must decide whether there was a sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable.
In applying this test, it was Mr Khan’s job to deal with customers, and therefore interacting with customers was within scope of his activities that he was employed to do. The connection between the field of activities assigned to Mr Khan and his employment did not cease at the moment when he came out from behind the counter and followed Mr M onto the forecourt. The Court held that there were two reasons to draw this conclusion. First, it is not correct to regard Mr Khan as having metaphorically taken off his uniform the moment he stepped out from behind the counter – he was following up on what he said to the Claimant. Secondly, when Mr Khan followed the Claimant to his car and told him not to come back to the petrol station, that was not something personal between them, but an order to keep away from his employer’s premises. In giving the order he was purporting to act about his employer’s business.
The Court held that Mr Khan’s motive in the attack is irrelevant. It does not matter whether he was motivated by personal racism rather than a desire to benefit his employer’s business.
The Wider Context
Although the facts are somewhat stark in this case, it does have wider significance, as it would potentially apply to liability caused by a manager bullying an employee, or employees harassing a colleague, which could lead to liability outside the normal scope of remedy available through the Equality Act 2010.
This article was written by No5 Chambers Employment Barrister Mugni Islam-Choudhury.
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