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Vicarious liability – guidance as to the appropriate tests to be applied

02/03/2016

Author: Carla Gowing

Employment, Legal Updates

Vicarious liability generally describes a situation where someone (a company or individual) is held responsible for the actions or omissions of another. An employer can be liable for the acts or omissions of its employees, provided that the act or omission took place in the course of the employee’s employment.

The Supreme Court has issued its judgments this week regarding two linked appeals relating to vicarious liability in employment and employment-like relationships.

In Cox v Ministry of Justice, the Supreme Court confirmed that vicarious liability can arise in relationships which might not be considered an employment relationship. Such liability cannot be avoided on the basis of technical arguments about the employment status of the individual who committed the harm.

In Mohamud v WM Morrison Supermarkets plc, the Supreme Court decided that an employer was vicariously liable for a violent assault on a customer by one of its employees. The employee’s motive, which appeared to be personal racism rather than a desire to benefit his employer’s business, was irrelevant.

Cox v Ministry of Justice

Mrs Cox was the catering manager at HM Prison Swansea. Part of her role involved the management of the employees working in the kitchens, plus the supervision of a number of prisoners working in the kitchens. Mrs Cox was injured when one of the prisoners accidentally, but negligently, dropped a 25kg sack of rice on her back. She therefore issued a claim for personal injury against the Ministry of Justice (“MoJ”), on the basis that the MoJ was vicariously liable for the prisoner’s negligence.

Although the county court decided that the MoJ was not liable, the Court of Appeal overturned that decision, confirming that the relationship between the MoJ and the prisoner was sufficiently “akin to employment”. The Court of Appeal found that the prisoner carried out duties on behalf of the prison service and for its benefit, with the work performed being part of the business of the prison. The MoJ therefore appealed the finding that it was negligent.

The Supreme Court dismissed the appeal with a unanimous judgment. The factors previously considered to indicate vicarious liability (Catholic Child Welfare Society and ors v Various Claimants and ors [2012] UKSC 56; [2013] 2 AC 1) were reviewed and it was confirmed that the key features are:

  1. that harm is caused by an individual who is carrying out an activity on behalf (and for the benefit) of the defendant;
  2. that the activity is likely to be part of the business activity of the defendant; and
  3. that the risk of the harm occurring was caused by the defendant having assigned responsibility to the individual to carry on the activity.

Where these elements are established in a relationship other than employment, vicarious liability can be capable of arising. It was acknowledged that this approach reasonably extends the scope of vicarious liability beyond the employer-employee relationship and reflects the fact that businesses should take responsibility for the risks created by their activities. The judgment highlights that there are many situations in modern workplaces where workers may in reality be part of the workforce of an organisation without having a contract of employment with it.

The MoJ was therefore liable as the prisoner was integrated into the operation of the prison, with the activities assigned to him forming an integral part of the prison’s activities in furtherance of its aims. The prisoner was placed in a position by the prison service where there was a risk that he might commit a negligent act whilst completing the activities assigned to him.

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Mohamud v WM Morrison Supermarkets plc     

K was an employee of WM Morrison Supermarkets plc (“Morrisons”) who worked at a supermarket petrol station. Mr Mohamud was assaulted and racially abused by K on the premises of the petrol station where K worked. Mr Mohamud pursued a personal injury claim against Morrisons, but was initially unsuccessful on the basis that K’s actions were beyond the scope of his employment. The Court of Appeal agreed that Morrisons was not liable for K’s actions because there was no sufficiently close connection between the wrongdoing and the employment, although it was relevant that the assault took place at K’s place of work and whilst he was on duty. Mr Mohamud therefore appealed to the Supreme Court.

The Supreme Court has allowed the appeal with a unanimous judgment, confirming the “close connection” test for employer-employee vicarious liability (Lister v Hesley Hall Ltd [2001] ICR 665, HL). The essence of that test has been clarified, with two key factors being relevant:

  1. The nature of the job entrusted to the employee must be considered broadly; and
  2. The court must enquire whether there was a sufficient connection between the employee’s position and his or her wrongful act to make it right, under the principle of social justice, to hold the employer liable for the wrongdoing.

Applying this analysis to the present case, it was agreed that vicarious liability should be imposed. It was K’s job to attend to customers and his conduct, whilst inexcusable, was within the “field of activities” assigned to him. The assault and abuse occurred as part of an unbroken sequence of events, where K attempted to remove Mr Mohamud from his employer’s premises and reinforced his order that Mr Mohamud stay away from the premises by the use of violence. In giving such an order he suggested that he was acting on behalf of his employer. Although it was a gross abuse of his position, it was in connection with the business in which he was employed to serve customers. Morrisons entrusted him with that position and therefore Morrisons should be held responsible for K’s abuse of it.

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If you need advice on any Employment matter, please contact Carla Gowing on 01603 660 811, or at carlagowing@hatchbrenner.co.uk

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