When an employer hires a member of staff, they make a promise to look after them in the workplace by paying them a fair wage and watching over their health and safety. But those promises cut both ways. With those employment rights also come responsibilities.
Employees are often their employer’s most visible representatives, the public-facing first point of contact in a company.
If an employee’s conduct in the workplace falls short of the standard expected, the employer can be left carrying the can. Welcome to the world of “vicarious liability”.
Some lawyers love complicated language – if it’s in Latin, all the better – but “vicarious liability” simply means one person is held responsible for the action or inaction of another person. If an employee breaks the law in the course of their duties, their employer may also end up held accountable.
A recent decision by the Supreme Court in London and two cases in Scotland raise questions over where the courts now draw the line when it comes to vicarious liability. At what point does an employer cease to be responsible in law for the actions of their employees?
In the case of Mohamud v WM Morrison Supermarkets PLC, a petrol pump attendant refused, rudely, to let a customer use a filling station’s customer printing facilities. When the customer protested, the employee abused him with foul, racist and threatening language before ordering him to leave.
When the customer returned to his car, the employee followed him, opened the passenger’s door, told the customer using threatening language never to return to the filling station and punched him.
The customer got out of his car to close the passenger’s door but then the employee launched a further serious assault on the customer, without the customer doing anything that could be considered either aggressive or abusive.
The Supreme Court concluded the employee was purporting to act for his employer when he followed the customer out to his car – in effect the petrol pump attendant was making sure the customer heeded his warning to leave the premises before he assaulted him.
So, the employer had to pay compensation for the employee’s crime. The court’s decision, delivered on 2 March, arose from an English appeal case and is not binding in Scotland, but it is persuasive in the Scottish Courts.
What if the attack had taken place in Bathgate instead of Birmingham? Would the Scottish courts have taken a different approach?
The case highlights the clear need for retailers and employers in general to be wary of their duties arising from the conduct of their employees.
There is little doubt that there is scope for further litigation on this subject.
Employers should take a vigorous, pro-active approach when it comes to selecting staff in the first place and then ensure adequate training so employees are left in no doubt as to the standard of behaviour that they are expected to meet.
Regularly assessing employees’ performance and providing a safe environment for whistleblowing by colleagues will help to avoid problems arising in the first place.
• Frank Hughes is a Partner with BLM