Posted on Mar 21, 2016
In March 2008 the claimant entered a Morrisons petrol station and asked Mr Khan, the kiosk attendant, for assistance in printing out some documents he had stored on a USB pen. Mr Khan refused the request in a rude manner and when Mr Mohamud protested he was met with foul, racist and threatening language and ordered to leave the premises. Mr Mohamud returned to his car.
Mr Khan followed, opened the passenger door of the vehicle, told him to leave the premises using threatening language and punched him on the left temple. Mr Mohamud got out of his car and made to close the passenger door when he was subjected to a serious attack. Mr Mohamud had behaved in an appropriate and unthreatening manner throughout.
A court action was raised against Morrisons on the basis that they were vicariously liability for the actions of Mr Khan. This line of argument was refused by both the trial judge and the Court of Appeal on the basis that there was an insufficiently close connection between what Mr Khan was employed to do and his actions in assaulting Mr Mohamud.
A further appeal was made to the Supreme Court where Lord Toulson held that the “close connection” test was an appropriate test to apply. The two matters to be considered were firstly the nature of Mr Khan’s job and secondly whether there was a sufficient connection between what he was employed to do and his wrongful conduct to make it right that Morrisons should be held liable.
In applying that test it was found that it was Mr Khan’s job to attend to customers and respond to their enquiries. Interacting with customers was within the field of activities assigned to him by his employer. The connection between the duties assigned to Mr Khan and his employment did not cease the moment he came out from behind the counter of the kiosk and followed the claimant onto the forecourt.
Lord Toulson said there were two reasons to draw this conclusion. Firstly, Mr Khan had not metaphorically taken off his uniform the moment he stepped out from behind the counter, and secondly when Mr Khan told the claimant not to come back to the petrol station, this was not a personal matter between them, but an order to keep away from his employer’s premises. In giving that order he was purporting to act in his employer’s business.
The outcome of this case is such that employers may now find it harder to argue that the employee was on ‘a frolic of his own’ to avoid liability for assaults or violent actions of their employees. It does however remain the case that there must be a sufficiently close connection between an employee’s wrongdoing and their employment such that it is fair to hold the employer liable. Whether there is such a connection will turn on the facts of each individual case.
Lisa Hainey is a Senior Solicitor in our specialist Personal Injury team. If you would like more information please contact Lisa on 01382 346805 or email email@example.com. Alternatively, contact the Personal Injury Team on 01382 229111 who will be pleased to assist further.
Categories: Personal Injury