Mr Khan was employed by Morrisons to work in one of its filling stations. He was responsible for attending to customers, serving at the kiosk and ensuring that the fuel pumps and kiosks were running efficiently. Mr Mohamud visited the site as a customer on 15 March 2008 and asked in the shop whether it would be possible to print some documents from a USB stick.
Mr Khan was one of three members of staff on duty that day and responded with expletives. When Mr Mohamud objected to being spoken to in such a way, Mr Khan used even more offensive and racist language and ordered him to leave the premises.
Mr Khan's verbal abuse then turned into a physical attack as he followed the customer to his car, opened the passenger door and punched him in the head. When Mr Mohamud got out of the car to shut the door, Mr Khan's behaviour escalated as he pushed Mr Mohamud to the ground and repeatedly punched and kicked him as he lay curled up on the forecourt, ignoring the pleas of his fellow employees.
The immediate thoughts on this case are what provoked this behaviour? Could the other employees have done more to restrain Mr Khan? What could Morrisons have done to prevent the attack? Questions that are all but impossible to answer.
Initially, when Mr Mohamud brought his personal injury claim, it was held that there was not a sufficiently close connection between Mr Khan's wrongdoing and his employment.
Mr Khan's actions were deemed beyond the scope of his employment. This decision was upheld by the Court of Appeal before being challenged again.
The Supreme Court allowed the appeal and adopted the traditional approach established in the 2001 case Lister v Hensley Hall to determine whether the employer should be held vicariously liable for Mr Khan's actions. The Lister test asks whether the connection between the employment and the wrongful act or omission is so close that it would be just and reasonable to impose liability.
Although the court endorsed the test, it acknowledged the imprecision of it and highlighted two key considerations when applying it:¬ the nature of the job entrusted to the employee must be considered broadly; and¬ the court must enquire whether there was a sufficient connection between the employee's position and his or her wrongful act to make it right, under the principle of social justice, to hold the employer liable for the wrongdoing.
Using this approach, the decision was reached that, as Mr Khan was employed to attend to customers and as he was purporting to act about his employer's business in attempting to remove Mr Mohamud from the premises, there was a strong enough connection to hold Morrisons vicariously liable for Mr Khan's actions and the abuse of his position.
Looking at Mr Khan's role, broadly, he was employed to deal with the public and the incident occurred when he was doing just that.
Maybe the message the court was delivering was that Mr Khan should not have been employed to deal with the public and that is why the employer was penalised.
What is vicarious liability?
Vicarious liability is a form of strict, no-fault liability for wrongful acts or omissions committed by another person.
In the context of employment, this involves an employer being held liable for the wrongs committed by an employee where a sufficient connection with employment can be established. This may arise even if the employer itself is not in the wrong, as we have seen from the case above.
The facts of this case are very unusual and there is little that an employer can do to protect itself against a rogue employee once that employee is in place. But prudent steps can be taken to minimise to show that they have tried to guard against this risk and they are listed in the panel on the right.
However, even with a company putting all these measures in place, we cannot guarantee that the facts of this case, if repeated, would not have resulted in the same outcome. But there would have been more grounds on which to pursue further argument, and that might have affected the result.
¬ Karen Mason is a partner and Charlotte Rogers a trainee solicitor at Boodle Hatfield. They can be reached via the firm's website www.boodlehatfield.com.
¬ be rigorous in your recruitment assessment of employees;
¬ make sure that there are clear policies in place dealing with discrimination and behaviour standards both relating to internal and external practices;
¬ provide regular training to all employees, with more frequent training for those dealing direct with the public;
¬ where possible deploy employees in pairs to regulate each other's behaviour;
¬ provide incentives for employees to adopt high standards in their roles;
¬ be aware of any shortcomings of employees and provide extra support and guidance if it is necessary;
¬ assess and appraise all employees regularly for suitability to their roles;
¬ deal with any complaints received internally and externally quickly and fairly;
¬ adhere to market standards within your industry and have clear lines for reporting any complaints; and
¬ keep good records of any complaints received and provide a clear paper trail.