Punching the Customer – Vicarious Liability Update
Bill Dixon, a partner in our Dispute Resolution team, considers a recent case where a supermarket employee assaulted a customer. The question was whether the supermarket was liable.
In Khan v Morrisons, the Supreme Court has reconsidered the question of vicarious liability. In other words, when is an employer liable for the actions of its employees?
Morrisons ran a supermarket in Birmingham which included a petrol station. One day in 2008 one of their employees was in charge of a kiosk at the petrol station. For some reason he got upset with a customer. He started out with abusive language. He then followed the customer out to his car, opened the door and then punched and kicked him.
Previously, the Supreme Court had had to consider a similar question in Dubai Aluminium v Salaam. In that case, a group of defendants were involved in an alleged fraud on a Dubai state owned company. The partner in a London law firm was accused of knowingly drafting legal agreements that covered up the fraud. The court had to consider whether the innocent law firm was vicariously liable for the acts of its dishonest partner. The court applied a “close connection” test concluding that what the law firm partner had done was sufficiently closely connected to his work so as to make the law firm liable.
In Khan, the Supreme Court continued the same approach. Although Mr Khan appeared to have been personally motivated (and his employers were no doubt horrified), what he did was in connection with the business within which he was employed and therefore the supermarket was liable.
In many ways this is a harsh decision for employers. It reinforces the need for employers to be careful in putting in place proper training and supervision. They may also need to act early to weed out unsuitable members of staff.
Bill Dixon acted on the earlier Dubai Aluminium case all the way through to the Supreme Court.