Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11

A customer at a petrol station was subjected to an unprovoked violent racist attack by an employee after making a routine enquiry. The Supreme Court held the employer vicariously liable, applying the 'close connection' test. The employee's assault was a seamless continuation of his interaction with the customer within his field of employment.

Facts

Mr Mohamud, a customer of Somali origin, visited a Morrisons petrol station in Birmingham on 15 March 2008. He entered the kiosk to enquire whether documents could be printed from his USB stick. Mr Khan, an employee behind the counter whose job was to serve customers and maintain the kiosk, responded with foul, racist and threatening language, ordering the customer to leave. When the claimant returned to his car at the air pump, Mr Khan followed him onto the forecourt, opened his passenger door, threatened him, and then subjected him to a violent assault involving punches and kicks while the claimant lay on the ground. The attack was unprovoked and Mr Khan ignored instructions from his supervisor to stop.

Procedural History

The trial judge dismissed the claim against Morrisons, finding insufficient connection between Mr Khan’s employment and his tortious conduct. The Court of Appeal upheld this decision.

Issues

The central issue was whether there was sufficient connection between Mr Khan’s employment and his wrongful conduct to make Morrisons vicariously liable for the assault.

Judgment

The Supreme Court unanimously allowed the appeal, holding Morrisons vicariously liable.

The Close Connection Test

Lord Toulson, delivering the leading judgment, explained that vicarious liability requires two matters to be considered. First, what functions or field of activities have been entrusted to the employee, which must be addressed broadly. Second, whether there was sufficient connection between that position and the wrongful conduct to make it just to hold the employer liable.

Lord Toulson stated that the court must ask whether the employee used or misused the position entrusted to him in a way which injured the third party. He emphasised that the Lister v Hesley Hall Ltd approach remained correct and no change in vocabulary was required.

Application to the Facts

Lord Toulson held that Mr Khan’s job was to attend to customers and respond to their inquiries. His foul-mouthed response, though inexcusable, was within his field of activities. What followed was an unbroken sequence of events. When Mr Khan followed the claimant to his car and ordered him never to return to the premises, reinforcing this with violence, he was purporting to act about his employer’s business. Lord Toulson rejected the argument that Mr Khan had metaphorically taken off his uniform when stepping from behind the counter.

Lord Dyson agreed, noting that while the close connection test is imprecise, imprecision is inevitable in this area. He rejected the appellant’s proposed alternative ‘representative capacity’ test as hopelessly vague and no improvement on the existing law.

Implications

This case reaffirms the close connection test for vicarious liability established in Lister v Hesley Hall Ltd. It demonstrates that employers may be held liable for employees’ violent acts where there is an unbroken sequence of events arising from the employee’s field of activities. The employee’s personal motive (here, apparent racism) is irrelevant. The decision provides guidance that courts should take a broad view of the employee’s job and consider whether the wrongful conduct occurred within the field of activities assigned to them, even when that conduct is a gross abuse of their position.

Verdict: Appeal allowed. WM Morrison Supermarkets plc was held vicariously liable for the assault committed by their employee Mr Khan.

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