March 30, 2016

Are you responsible for your employees’ crimes?

Employers can be held responsible for crimes committed by employees at work, according to a high profile Supreme Court Case.

A unanimous judgement by the UK’s highest court confirms the far reaching consequences of the principles of ‘vicarious liability’ – where someone is held liable for another’s acts and may make it easier for aggrieved customers to sue businesses in future.

In this case, which hit the headlines recently, the supermarket Morrisons was held vicariously liable for the actions of an employee who seriously assaulted a customer.

What is Vicarious Liability?

Usually, where a person expressly committed or sanctioned a wrong doing, that person will be held personally liable.

However, there are certain situations where a person would be liable for the wrong doing of another, even in the absence of an expressed or acceptance of the wrong doing.  This form of liability is referred to in law as vicarious liability.

This situation is more likely to arise in an employee/employer relationship.

When could you be held Vicariously Liable?

An employer can be held responsible for the wrong act of an employee whether he or she was or wasn’t aware of the wrong doing or act if it occurred in the course of his/her employment.

For this situation to arise, it is not necessary for the employer to be in breach of any duty owed to the injured person.

What is required is that the wrong doer was/is an employee of the business and that the wrong done was in connection with the employment.

In the past, an employer could argue that the employee’s actions were unconnected with his/her employment and/or that the employee had acted out of character and against company policies.

It would then be unlikely that the employer would be held responsible.

The Morrison’s case and another recent example, Cox v Ministry of Justice [2016], may have changed this.

Mohamud vs WM Morrison Supermarket Plc

  • Mr. Mohamud stopped off at a petrol station owned by Morrison and enquired into whether they could print a document from a USB stick that he had with him.
  • His enquiry was made to a Mr Khan, an employee of Morrison, who was abusive towards him and subsequently subjected him to a violent attack.

After going to court, appealing against the decision and ending up at The Supreme Court, Mr Mohamud  was eventually successful in his case.

The court concluded that the fact that Mr Khan used foul language towards Mr Mohamud in the kiosk and this continued when he later approached Mr Mohamud’s car and punched him, again using foul language was sufficient enough to show that there was a connection.

Although one of the Judges at the Court of Appeal approached the matter in the correct way, it was only when it went to the Supreme Court that a review resulted in Mr Mohamud’s appeal being successful.

Another recent example: Cox v Ministry of Justice

In Cox v Ministry of Justice, Mrs Cox was injured by a prisoner who accidently dropped a bag of rice on her.

  • He was not an employee of the prison service, but was vetted and approved by an agency of the Prison Service to work in the kitchen alongside Mrs Cox.
  • Mrs Cox claimed that the Ministry of Justice was vicariously responsible for the harm done to her by the prisoner.
  • In this case the court decided that in principle the Ministry of Justice could be held responsible.

What do these cases show?

What the cases show is that a court is unlikely to adopt a strict approach to a situation where a customer/client or fellow colleague is harm/injured as a result of the wrong doing of an employee.

Instead the court is likely to look at the whole facts and consider what is “fair and just” in the circumstances.

It is therefore important that employees are fully inducted with the practices and procedures of your business paying, particular attention to the manner in which customers/clients are approached, and spoken to.

You should consider adopting a “dignity at work policy” and although this is usually applied within the business; there is no reason why the principles cannot apply to customers/clients alike.

 

Should you need any further advice on this topic, please do not hesitate to contact us.

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About the author

Francis Scoon

Francis has over 20 years’ experience of Employment Law and HR related issues gained in both large public and private organisations. As well as representing SMEs, Francis has worked in the Employment Department of a large regional law firm, advising preparing and representing cases on behalf of claimants. Before joining Moorepay, Francis was a Senior Advocate where, in addition to maintaining a caseload of employment tribunal cases covering all aspects of employment law, he managed a team of advocates and an administrator.