THE family of a Lithuanian supermarket worker murdered by a racist colleague have failed in their attempt to sue Sainsbury’s, who employed both men.
Relatives of Roman Romasov had been given permission to pursue a £500,000 damages claim against the company by a judge in April.
However, Sainsbury’s appealed the decision, and yesterday judges at the Court of Session, in Edinburgh ruled in their favour.
The murder was described as a shocking example of xenophobic behaviour.
Jelena Vaickuviene, 55, and other members of Mr Romasov’s family, claimed that Sainsbury’s could be blamed for Robert McCulloch’s fatal knife attack, because of a history of harassment at the store in Berryden Road, Aberdeen.
But Lord Justice Clerk, Lord Carloway, sitting with Lord Brodie and Lord McGhie concluded that there was no link between Mr McCulloch’s conduct and his job which could make his employers “vicariously liable”.
Nightshift worker McCulloch, 38, was a member of the British National Party and known to hold extreme and racist views about Eastern European workers coming to the UK, the judges heard.
He admitted murder and was jailed for life in July 2009 after repeatedly stabbing his 28-year-old Lithuanian victim with a knife he took from the kitchenware section of the supermarket.
McCulloch was ordered to serve at least ten years and nine months.
Mr Romasov, of Tanfield Walk, Aberdeen, was working at the store to fund his studies in mechanical engineering.
He had previously pitched a tent outside the headquarters of an oil firm and pleaded for work.
McCulloch, of Farmer’s Hall, Aberdeen, regularly made racist comments, the judges heard. He told Mr Romasov he did not like immigrants and that he [Mr Romansov] should get back to his own country.
Mr Romasov became so upset he wrote to his team leader to complain and his letter was passed to a nightshift manager.
Mr McCulloch got to hear about the complaint, which could have been grounds for dismissal under the Protection from Harassment Act 1997.
However, Mr Romasov’s relatives said no action was taken in the days leading up to the murder to warn, suspend or dismiss McCulloch, or to ensure that the two men were not on shift together.
On the night of 15 April, 2009 the two men argued and McCulloch was later seen pacing up and down and talking to himself.
He then took the knife and stabbed Mr Romasov several times. Paramedics were unable to save his life.
Lady Clark of Calton had backed the relatives’ action.
She said arguments about Mr McCulloch’s reaction to the supermarket’s choice of fellow employee should be argued out at a future hearing.
But, in their appeal, Sainsbury’s persuaded the court there was no “close connection” to make them liable to pay damages.
The test was whether McCulloch’s specific employment duties “created or significantly enhanced the risk of harm occurring”.
The supermarket’s lawyers said the family’s case fell at the first hurdle because “shelf stacking did not carry with it any risk of violence”.
However, in dismissing the claim, Lord Carloway suggested that Mr Romasov’s family might have had a greater chance of success if the case had been conducted in a different way
Sainsbury’s could, for example, have been accused of failing in their duty of care by putting the two men together, in spite of Mr McCulloch’s known extreme views.