Contributors
Whilst it has long been established that an employer is vicariously liable for the tortious acts of its employees if the acts are carried out in the course of employment, the development of the 'close connection' test is making it increasingly difficult for employers to avoid a finding of vicarious liability.
The 'close connection' test
In recent times, the courts have applied the 'closely connected' test set out in the case of Lister v Hesley Hall Ltd [2002] to determine whether an employer is liable for the wrongful acts (generally assault) of an employee. It is obviously highly unlikely that an employee’s job description or contract for services will include the use of violence or some other criminal activity and, as such, the case of Lister developed the concept of an employer being liable for a wrong if the wrong is 'closely connected' to the employment or services for which the employee was engaged.
The case of Gravil v Carroll & another [2008] clarified the decision in Lister, and established that "the essential question is … whether the tort is so closely connected with the employment, that is with what was authorised or expected of the employee, that it would be fair and just to hold the employer vicariously responsible."
Further, in making the evaluation of the closeness of the connection "it is appropriate to consider whether the wrongful act can fairly be regarded as a risk reasonably incidental to the purpose for which the tortfeasor was employed" (Brink's Global Services Inc. and others v Ingrox Ltd [2010]).
Consideration should also be given to closeness, not only in terms of the nature of the work, but also in relation to time, place and causation. In Wilson v Excel [2010] Lord Carloway said: "A broad approach should be adopted. Time and place is always relevant, but may not be conclusive and the fact that the employment provides the opportunity for the act to occur at a particular time and place is not necessarily enough.". This suggests that an employer will not be liable for an assault by his employee merely because it occurs during working hours. However, compare this with the earlier decision in Mattis v Pollock [2003] which suggests that an employer will not escape liability simply because the tortious act occurred outside normal working hours and/or the workplace.
The Supreme Court's guidance
In the case of Mohamud v Wm Morrison Supermarkets plc [2016] , the Supreme Court took the 'close connection' test a step further. In this case the claimant checked the tyre pressure on his car at one of Morrison’s petrol stations and asked to use a printer at the kiosk whilst he was there. However, on entering the kiosk, a Morrison's employee racially abused the claimant, and then followed him onto forecourt where he attacked him.
The assault was carried out on Morrison’s premises by an employee who was on duty at the time. Nevertheless, whilst the Court sympathised with the claimant, they ultimately found that Morrisons were not vicariously liable for the actions of its employee. On appeal to the Supreme Court however, it was found that applying the "close connection" test, as per Lister, Morrisons were, in fact, liable. This was based on the fact that Morrisons had entrusted the employee with the position of serving customers and it was therefore only right that they should be responsible for his abuse of that position.
In reaching their decision, the Supreme Court held that, two matters had to be considered:
- What functions had been entrusted by the employer to the employee (ie what was the nature of his employment)?
- Whether there was sufficient connection between the employee's wrongful conduct and the position in which he was employed to make it right for the employer to be held vicariously liable?
The Court recognised that it was the employee's job to attend to customers and respond to their queries. Whilst his behaviour was unacceptable, interacting with customers was within the "field of activities" that were assigned to him by Morrisons. The Court decided that the employee was not to be taken to have metaphorically "taken off his uniform" the moment he stepped over the counter. What happened thereafter was an "unbroken sequence of events" as the employee repeated his order to keep away from his employer's premises once he was on the forecourt - an order that he reinforced by using violence. In doing so, he was puportedly furthering his employer's business.
It was acknowledged that the employee's behaviour was a gross abuse of his position, however it was connected with the business in which he was employed to serve customers, and so Morrisons was ultimately held vicariously liable for the employee's actions.
Assault by managing director
One of the more recent cases involving vicarious liability is that of Bellman v Northampton Recruitment Limited [2016] . In this case, the claimant has been granted permission to appeal against the dismissal of his the claim whereby the Court held that the defendant was not vicariously liable for an assault committed by its managing director.
The claimant was employed by Northampton Recruitment as a sales manager. He had attended the company's Christmas party at a golf club, and then moved on with some of the other guests to a nearby hotel where they continued drinking. At around 3am the managing director, Mr Major, launched into a drunken tirade about work matters, lost control, and then punched the claimant twice. The claimant hit his head on a marble floor, sustaining serious injuries.
The judge assessed what functions or fields of activity were entrusted to the managing director and found that he was the directing mind and will of the company, and his role included overseeing the smooth running of the party. However despite his wide-ranging duties, he was not considered to be on duty solely because he was in the company of other employees.
The judge identified three key factors:
- The assault occurred after, and not during the party itself, as the impromptu post-party drinking in the hotel was not a seamless extension of the party
- Merely discussing work matters during that drinking session did not transform it into something which occurred in the course of employment
- By paying for some or all of the alcohol at the drinking session, the defendant did not materially increase the risk of confrontation.
Taking these factors into account , the judge held that the independent and voluntary late night drinking session was unconnected with the defendant's business and so did not give rise to a finding of vicarious liability.
The claimant sought and was recently granted permission to appeal to the Court of Appeal, on the grounds that the judge failed properly to apply the two-stage test in Mohamud, and that he erred in his approach when considering the connection between the managing director's position and the assault. The appeal has been allocated a hear-by date of 12 April 2018.
What next?
It is clear from the case law that there are no hard and fast rules when determining whether an employer will be liable for the tortious acts of its employees.
The guidance as set out in Lister and refined in Mohamud remains good law and the test is still two-fold with consideration being given to:
- What is the nature of the employee's job?
- Is there sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable?
It will be interesting to see what the Court of Appeal's decision in Bellman will be, and how this will affect the concept of vicarious liability.
