The saying that “no man is an island” highlights the interdependence which affects our ability to achieve our objectives.
While such interconnectedness represents a positive attribute, it can contrastingly be a negative in the form of vicarious liability whereby an employer can face legal liability for the act(s) and/or omission(s) of the employee.
Vicarious liability might logically be perceived as predominantly linked to matters of employee negligence, where the employee has neglected his/her duty of care to do or not to do a particular thing, that breach has caused harm to another person or legal entity, and such harm was reasonably foreseeable.
For example, an employee who is responsible for fitting a new tyre, neglects to adequately tighten the wheel nuts on a customer’s vehicle and the customer is killed that same day due to a collision that is caused after the new tyre disconnects from the vehicle. However, the case of Mohamud v WM Morrison Supermarkets [2016] UKSC 11 reveals that employers have been found liable for employee’s acts of assault, fraud, sexual abuse and so on.
According to Winfield and Jolowicz on Tort, a prerequisite for vicarious liability is that the employee’s act(s) and/or omission(s) must occur during the course of employment. Behaviour may be deemed to come within the course of employment if “it is expressly or impliedly authorised by his master; or it is an unauthorised manner of doing something authorised by his master; or it is necessarily incidental to something which the servant is employed to do”.
Expressly or impliedly authorised by his master
This constitutes a situation where an employer facilitates an employee’s harmful behaviour by either directing the employee to so behave or by having done nothing to avert the likely occurrence of such behaviour. For example, the owner of a business directs his truck driver to illegally dump the waste produced from the business’ operations; or refuses to provide the driver with the money necessary to pay the fee charged by the authorities for the acceptance of such waste.
Unauthorised manner of doing something authorised by his master
In the case of Lloyd v Grace, Smith & Co [1912] AC 716, a widow consulted a firm of solicitors seeking advice on dealing with two properties left to her by her late husband. The clerk who was responsible for the firm’s conveyancing department, defrauded Lloyd by getting her to unknowingly convey the properties to him and then selling the properties for his own benefit.
The firm was held vicariously liable for the clerk’s actions on the basis that even though the fraud was not authorised by the firm, said fraud related to property transactions that formed a bona fide part of the clerk’s employment with the firm. Lord Macnaghten, who gave the leading judgment, also felt that it would be an injustice if the firm were not held liable.
Necessarily incidental to something which the servant is employed to do
In the Mohamud case, Mohamud entered the kiosk of what would essentially be a gas station/auto mart operation, where he asked whether it would be possible to print some documents from a USB stick.
In response to the query, an employee then proceeded to use foul, racist and threatening language before ordering Mohamud to leave the kiosk. Mohamud left the kiosk, proceeded to his car and was about to leave when the employee opened the passenger door and threateningly told Mohamud never to come back to the establishment.
When Mohamud told the employee to get out of the car and to close the door, the employee punched him in the head. Mohamud then switched off the car and got out to close the passenger door, at which point the employee punched him in the head, knocked him to the ground and severely punched and kicked him as Mohamud laid on the ground trying to protect his head. The attack occurred despite the attempts of the employee’s supervisor to stop him.
At first instance, the judge found that the employer was not vicariously liable because there was an insufficient connection between his work of serving customers and the unprovoked assault; and the employee chose to ignore instructions as he moved from behind the counter, followed Mohamud and inflicted the assault. At appeal, the first instance decision was upheld on the basis that the employee’s duties did not involve a clear possibility of confrontation or place him in a situation where violence was likely. However, Clarke LJ stated that if the matter was being assessed in relation to fairness and justice that there would be strong grounds for a victim such as Mohamud to be compensated by an employer who was likely to have more financial wherewithal that of the employee who committed the act.
At the UK Supreme Court, Lord Toulson, who gave the leading judgment, reviewed the authorities on vicarious liability over the centuries. The court laid down the principle that when a court has to use the “close connection” test to adjudicate a claim for vicarious liability, there should firstly be an examination of the employee’s duties and secondly, consideration as to whether there was sufficient connection between the employee’s position and his/her wrongful conduct, to warrant the employer being held liable under the principle of social justice.
The court asserted that the necessary connection was found in cases in which the employee misused the position entrusted to him/her and such injured the claimant.
The court held that WM Morrison Supermarkets was vicariously liable for the employee’s actions. The reasoning being that the employee’s job entailed attending to customers and dealing with their queries; and that his inexcusable language, ordering Mohamud to leave the kiosk and threateningly telling Mohamud never to come back to the establishment (which he accompanied with violence) were within the “field of activities” assigned to him.
The court rejected the prior argument that the connection between the employee’s employment and his behaviour ended when he proceeded from behind the counter and followed Mohamud outside the kiosk. Lord Toulson reflects the operation of the social justice principle when he states, “… he was employed to serve customers. His employers entrusted him with that position and it is just that as between them and the claimant, they should be held responsible for their employee’s abuse of it”.
The important lesson, which should be gleaned by employers from the operation of the courts’ dealings with vicarious liability, is that sound practices regarding recruitment, selection, induction, training, development, supervision, performance management, rewards and recognition are of paramount importance in order to limit the liability posed by the negative acts and/or omissions of employees.
Unfortunately, for those who might prefer a simpler and faster solution, attempting to follow the refrain of the singer Shaggy – “It wasn’t me.” is really not a feasible option.