Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11

A supermarket employee assaulted a customer following an initial query at a petrol station kiosk. The Supreme Court held the employer, Morrisons, vicariously liable for the unprovoked attack, broadening the 'close connection' test for an employer's liability for an employee's wrongful acts.

Facts

The appellant, Mr Mohamud, visited a petrol station kiosk operated by the respondent, WM Morrison Supermarkets plc. He approached the employee on duty, Mr Amjid Khan, to ask if it was possible to print some documents from a USB stick. Mr Khan responded to this legitimate customer enquiry with foul, racist, and threatening language, ordering Mr Mohamud to leave. Mr Mohamud left the kiosk and returned to his car. Mr Khan followed him, opened the passenger door, and subjected Mr Mohamud to a serious and unprovoked physical assault. Mr Mohamud brought a claim for personal injury against Morrisons, arguing that the company was vicariously liable for the actions of its employee.

Issues

The central legal issue was whether Morrisons could be held vicariously liable for the assault and battery committed by its employee, Mr Khan. This required the Supreme Court to determine whether Mr Khan’s wrongful conduct was so closely connected with his employment that it would be fair and just to hold his employer liable. The Court of Appeal had previously ruled that there was an insufficient connection, as Mr Khan’s job did not involve an element of confrontation or exercising authority, and he had ‘left his post’ to carry out the assault.

Judgment

The Supreme Court unanimously allowed the appeal, finding Morrisons vicariously liable for Mr Khan’s actions. Lord Toulson gave the leading judgment, with which Lord Reed, Lord Kerr and Lord Hodge agreed. Lord Thomas gave a separate, concurring judgment.

Lord Toulson’s Judgment

Lord Toulson reviewed the historical development of the ‘close connection’ test, established in Lister v Hesley Hall Ltd [2002] 1 AC 215. He sought to simplify the application of the principle. He proposed a two-stage test for the court to consider:

1. What functions or ‘field of activities’ have been entrusted to the employee by the employer? This must be viewed broadly.
2. Is there a sufficient connection between the position in which the employee was employed and the wrongful conduct to make it right for the employer to be held liable?

In applying this to the facts, Lord Toulson determined that Mr Khan’s role was to attend to customers and respond to their inquiries. His initial foul-mouthed response, while inexcusable, was a response to a customer and thus connected to his job.

It was Mr Khan’s job to attend to customers and to respond to their inquiries. His conduct in answering the claimant’s request in a foul-mouthed way and ordering him to leave was inexcusable but within the ‘field of activities’ assigned to him. What happened thereafter was an unbroken sequence of events.

Crucially, Lord Toulson rejected the Court of Appeal’s reasoning that Mr Khan had figuratively ‘taken off his uniform’ by leaving the kiosk. He saw the events as a ‘seamless episode’.

I do not consider that it is right to regard Mr Khan as having metaphorically taken off his uniform the moment he stepped from behind the counter. He was following up on what he had said to the claimant… When he followed the claimant to his vehicle and told him not to come back to the petrol station, that was not something personal between them; it was an order to a customer from a representative of his employer.

The motive for the attack was irrelevant; what mattered was the context of the employment relationship. Mr Khan’s conduct was a gross abuse of his position, but it was in connection with the business in which he was employed to serve customers. The attack stemmed from an interaction that began as part of his job.

Implications

The decision in Mohamud significantly clarified and broadened the scope of the ‘close connection’ test for vicarious liability. It moved the focus away from the specific authorisation of an employee’s acts towards a broader consideration of the ‘field of activities’ assigned to them. The judgment makes it more difficult for employers to avoid liability for their employees’ intentional torts, including criminal acts like assault, provided the wrongdoing arises from circumstances connected to their employment duties. It established that even where an employee’s actions are an abuse of their position, liability can attach if the act is part of a ‘seamless episode’ that began with a task related to their work. This reinforces the underlying policy of vicarious liability: that an employer who profits from an enterprise and creates the risk of harm by engaging employees should bear the responsibility for losses caused by that enterprise.

Verdict: The appeal was allowed. The respondent, WM Morrison Supermarkets plc, was held to be vicariously liable for the assault committed by its employee.

Source: Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11