The Supreme Court's unanimous decision yesterday to overturn the rulings of the High Court and Court of Appeal in the matter of Mohamud -v- W M Morrisons Supermarkets Plc  will have come as an unwelcome shock both to employers and their lawyers.
The victim had suffered an unprovoked, vicious and sustained assault at a Morrisons petrol forecourt by one of its kiosk attendants. The two lower Courts had ruled that Morrisons was not vicariously liable because the employee's violent acts were too far removed from his normal course of employment: to use the accepted parlance, he was "on a frolic of his own".
The Supreme Court's decision to overturn these rulings was apparently based upon the fact that during the incident the employee had ordered the victim not to return to the forecourt kiosk, and that his authority to do this was derived from his position as an employee of Morrisons. His actions were therefore seen to have flowed from his duty to interact with customers, and the racist-driven motivation for his attack was deemed to be irrelevant. However, the Supreme Court seems to have overlooked the fact that this particular emloyee was not inherently required to "keep order" through physical force as part of his every-day duties (in comparison, say, to a nightclub bouncer) and so in light of previous court decisions it seems highly arguable that his actions went well beyond his normal duties. There seems to have been no suggestion that Morrisons should have been alert to the employee's violent nature in light of previous incidents.
The Supreme Court stated that the law governing vicarious liability has not been altered by its decision - each case will continue to be decided upon its own facts and courts will still need to be convinced that the acts of an errant employee have sufficiently "close connection" with his / her job and duties before the employer can be found to be liable. However, in practice this decision – made as it was by the highest court in the land - must surely raise the high water mark and thereby increase the likelihood that any violent action taken by employees whilst undertaking public service duties could render the employer liable. Vicarious liability issues are already notoriously difficult to assess, and this decision will not make that task any easier. Employers might be wise to exercise extra diligence regarding employees with any apparent violent tendencies who have any regular contact with the public.
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