Vicarious liability in the workplace – the Supreme Court decides

Vicarious liability is the means by which a person or entity may be held liable for the acts or omissions of another, because of their relationship. The concept frequently arises in the employment context; employers are often held liable for the negligence of an employee committed in the course of his or her duties. To establish vicarious liability, two things must be established:

  1. A sufficient relationship between the employer and the wrongdoer.
  2. A sufficient connection between that relationship and the wrongdoer’s act.

The concept has regularly been considered by the UK’s highest courts in recent years and the law was further defined in two recent cases in the Supreme Court – Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 and Cox v Ministry of Justice [2016] UKSC 10. The complementary judgments make for cautionary reading for employers, and provide further clarification on the type of relationships that may give rise to vicarious liability and the scope of conduct to which it might be applied.

Cox v Ministry of Justice

Mrs Cox was employed in the kitchens of HM Prison Swansea, supervising both civilian staff and a number of prisoners. In 2007, she suffered an injury when a prisoner lost his balance and dropped a sack of rice onto her back. She brought proceedings against the Ministry of Justice (MoJ), claiming that they were vicariously liable for the negligence of the prisoner.

Eventually, the lower court decision was reversed by the Court of Appeal, which found that the relationship between the prisoner and prison service was similar to that of employer and employee. The Supreme Court dismissed the MOJ’s appeal, again holding the MoJ to be liable. It held that vicarious liability can be established in ‘employment-like relationships’ and not merely in an employer-employee scenario. In this case, the view was taken that prisoners working within a kitchen fell into this category. In particular, it gave weight to two key elements:

  • The risk of the wrongful act occurring was created by the MoJ in assigning responsibility for those activities to the wrongdoer;
  • Harm was done by a person who carries on activities as an integral part of the business activities of the MoJ and for its benefit.

Mohamud v WM Morrison Supermarkets

In Mohamud, the Claimant visited a petrol station owned by Morrisons. Upon attempting to print some documents from a USB stick, he was racially abused, assaulted and told to leave the premises by a Morrisons employee, Mr Khan. Mr Mohamud subsequently sued Morrisons for Mr Khan’s actions.

The trial judge and the Court of Appeal dismissed the claim, holding that there was not a strong enough connection between the wrongdoing of Mr Khan and his duties in his employment. He appealed to the Supreme Court, which allowed his appeal. The Supreme Court focused particularly on what is known as the ‘close connection’ test. This requires taking a broad view of the job given to an employee and considers whether the connection between their position and actions justify the employer being liable.

In this case, the Court held there was a close enough connection. Mr Khan’s role was to attend to Morrisons customers. He was trying to remove the individual from Morrison’s premises before violence ensued. Despite being a clear abuse of his authority, the Court viewed that this was within the field of activities of his role as it was sufficiently connected to his employment. Mr Khan’s motive for the attack was irrelevant.

Lessons for employers

Employers should take note of these decisions, as the implications may be far-reaching. Both cases show clearly that the concept of vicarious liability is not set in stone, and the courts are willing to extend its scope. The Cox case suggests employers may be liable even for the actions of individuals who are not ‘employees’ or ‘workers’ whilst Mohamud provides for liability for an employee’s actions that, on the surface, go beyond the scope of their employment.

Prudent employers should consider a number of steps in light of this case law. Both decisions highlight the need for employers to provide high quality training, not only for employees but for a wider group of individuals for whose actions the employer might be vicariously liable. They also highlight the need to consider disciplinary sanctions for workers who depart from standards of competence and conduct.  Further, in the outsourcing context, the increased exposure to a risk of vicarious liability may see employers looking to negotiate greater contract protections, potentially including indemnifications against vicarious liability.

For further information on any of the above, including your organisation’s potential risks regarding vicarious liability, please contact a member of Devonshires’ Employment Team.

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