When are you at work, but not at work?!
One might think that if a customer is attacked by an employee on their employer’s premises during working hours, the customer at the very least should be compensated by the employer. Unfortunately for customers, it is not as easy as that. Courts will in fact ask the question of whether there is a sufficiently close enough connection between the assault and the employment relationship so that it would be fair and just to hold the employer vicariously liable.
This test was considered in the recent case of Ahmed Mohamud v W M Morrison Supermarkets plc. Here, a customer (of Somali descent) visited a Morrison’s petrol station in Small Heath, Birmingham. On entering the Kiosk at the petrol station, the customer asked a Morrison’s employee if it was possible for him to print off some documents from his USB memory stick. The employee responded in a rather extreme way, which involved them being abusive and racist. Following this treatment, the customer subsequently left the kiosk and walked to his vehicle. However, undeterred, the employee followed the customer outside onto the forecourt and then proceeded to subject the customer to a foray of punches to the head and kicks, whilst the customer curled up on the floor!
Unsurprisingly the customer brought a claim against Morrison on the basis that it was vicariously liable for the actions of its employee. During evidence, and most importantly, the Court heard that the employee was encouraged by his Supervisor not to follow the customer out of the premises, and moreover, he was then encouraged to go back inside. After hearing this, the Court concluded that the employee had consciously decided to leave his kiosk and follow the customer “purely for reasons of his own” and so Morrison should not be liable for his actions as a result. The Court of Appeal later agreed with this approach.
As always, each matter will turn on its own facts, but in this case, the employee’s actions were clearly beyond the scope of his duties. However, previous cases have shown that where there is the risk of an attack taking place which is incidental to the type of work carried on, it could be held that there is a sufficiently close enough connection between wrongdoing and the employment. An example would include a night club doorman or a Security officer at Morrison, as they would be exercising authority, protecting the premises and keeping order. If it had been this type of employee who had assaulted Morrison’s customer then the outcome of the Mohamud case would probably have been different!
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.