The Court of Appeal has recently considered two cases on the issue of vicarious liability of employers. This refers to a situation where an employer is held responsible for the acts or omissions of another person, and arises where two conditions are met; first, that there is a relationship of a type capable of giving rise to vicarious liability between the perpetrator and the employer alleged to be liable. Secondly, there must be a close connection between that relationship and the act in question.
In Mohamud v WM Morrison Supermarkets Plc  EWCA Civ 116, Mr Mohamud – who was of Somali descent – visited a Morrison’s petrol station and convenience store in Birmingham. After checking the tyre pressures on his car, he entered the convenience store and asked the employee, Mr Khan, if it was possible to print off some documents that were on a USB stick he was carrying. Mr Khan responded in an abusive manner, including using racist language. Mr Mohamud left the store without retaliating. Mr Khan then followed him to his car where he subjected Mr Mohamud to a serious assault causing significant head, and other, injuries. Mr Mohamud brought a civil claim against Morrison’s alleging that they were vicariously liable for the assault committed by their employee.
When looking at the two-stage test, the judge found that the first stage was satisfied as the relationship between Morrison’s and Mr Khan was one of employer/employee. However, when considering the second stage, the judge found that there was not a sufficiently close connection between the assault and the employment so that it would be fair and just to hold Morrison’s liable.
Mr Mohamud appealed to the Court of Appeal. Whilst they noted that they had a lot of sympathy for him, his appeal was dismissed. The Court found that the duties imposed on Mr Khan in his interaction with customers was relatively limited. He did not have responsibilities for keeping order over them or have any authority over them. Moreover, his actions were not motivated by anything Mr Mohamud had said or done, nor were they in any way an attempt to advance the interests of his employer (whether reasonable or not).
It was clear that it took place purely for Mr Khan’s own reasons. Given that vicarious liability involves no fault on the part of the employer, the court found that it should not be applied to any and every contact between an employee and a customer.
In Cox v Ministry of Justice  EWCA Civ 132, Ms Cox worked as the catering manager of HM Prison Swansea. Her team consisted of two other members of staff plus about 20 prisoners, who were paid to work in the kitchen. Usually food supplies would be delivered to the ground floor of the prison and then transported to the first floor kitchen by lift. On the day in question, the lift was faulty so the supplies had to be taken up the stairs. A prisoner carrying a heavy load dropped one of the sacks he was holding, which burst open spilling rice everywhere. Ms Cox instructed everyone to stop until the spillage was cleared. She bent down to prop up the damaged sack to prevent more rice spilling. As she was about to stand up, another prisoner who had ignored her instruction and attempted to carry some food supplies past her and in so doing, dropped a sack onto her back causing her injury.
Ms Cox brought a civil claim against the Ministry of Justice. She argued that the relationship between the prisoners and the MOJ was ‘akin to employment’ and thus sufficient to satisfy the first element of the test above. Her claim failed initially, but she was successful in her appeal.
The Court of Appeal noted that the work carried out by the prisoners was required for the running of the prison and would otherwise have been performed by employees. In fact employing prisoners relieved the MOJ of having to pay employees at the market rate and all of the obligations of an employment relationship. Therefore, although they were obliged to carry out such work, thereby removing the voluntary element of an employment relationship, this was not a sufficient reason not to find that the MOJ were liable for their actions.
The feeding of the prisoners, and therefore the preparation of the food (including obtaining supplies) was clearly part of the business of the MOJ and therefore the second stage of the test was also met.
These cases both highlight the scope of the two elements of the test for vicarious liability. Employers need to be aware of the effect of these decisions on themselves and their employees so that they are aware of the potential liabilities they might face.
Safia Tharoo, Barrister, 42 Bedford Row, London