Mohamud v Wm Morrison Supermarkets

Facts

Mohamud went to a petrol station owned by Morrisons to ask whether he could have some documents printed from a memory stick. The employee at the kiosk, Khan, responded with abusive and racist language and told him to leave. Mohamud returned to his car, and Khan followed him onto the forecourt, ordered him not to come back, and then attacked him violently. Khan's job was to attend to customers at the kiosk, and he had been told to deal with their enquiries and requests. Mohamud sued Morrisons for damages for the assault.

History

The county court judge held that Morrisons was not vicariously liable, and the Court of Appeal dismissed Mohamud's appeal. The Supreme Court allowed his further appeal.

Issue

Whether the employer was vicariously liable for a violent attack by an employee on a customer which followed an exchange in the course of his duties; and what test applies to decide whether a wrongful act is sufficiently closely connected with the employment to make it just that the employer should be liable.

Held

Appeal allowed. Khan's role was to deal with customers, and his assault, although inexcusable, was closely connected with the way he dealt with Mohamud, because he was dealing with a customer when he began the abuse and the attack continued the same confrontation. Morrisons was vicariously liable.

Ratio

• The court asks two questions: what functions or field of activities have been entrusted by the employer to the employee, in broad terms; and whether there was a 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.
• An employee who, while dealing with a customer in the course of the job he was given, commits a wrong that is a continuation of that interaction, acts within the field of activities entrusted to him even if his conduct is a gross abuse of his position.

The judgments

Key reasoning

• The employee's job was to attend to and respond to customers, and he dealt with Mohamud in that capacity, so what he did was connected with his job.
• The abuse and violence were a gross abuse of his position, but that does not take the conduct outside the scope of the employer's liability because the question is whether it is just to hold the employer responsible, and an employer who puts someone in a position of contact with the public takes the risk of misconduct.
• The earlier decisions of the courts that had held employers not liable in cases of assaults were different on their facts, since in those cases the employee had stepped outside his duties.

Where it fits in the module

In Tort (FHS), on Course of employment, Mohamud is the central modern authority on the scope of employment for intentional torts. It follows Lister v Hesley Hall Ltd [2001] UKHL 22, Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48 and Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256, and is to be set against Wm Morrison Supermarkets plc v Various Claimants [2020] UKSC 12, in which the Supreme Court clarified that the test looks to the nature of the employee's job and not only the causal sequence of events and that a wrongdoer acting for purely personal reasons is not within it. Candidates consider the policy basis of the close connection test and whether the test gives a clear answer in cases of intentional wrongdoing.

Criticisms

• The close connection test is a question of social justice and degree, without a bright line, so employers cannot predict when they will be held liable for violent acts by staff and insurers cannot price the risk.
• The decision treated a sudden outburst of personal hostility as the exercise of the employee's job, though the assault had nothing to do with serving the employer's interests, and it blurs the difference between being given an opportunity and being given a role.
• The reasoning relies on the fact that the abuse and the attack formed one unbroken sequence, which suggests that liability depends on timing and place, rather than on any connection with the employer's business.
• The broad reading of the field of activities entrusted to the employee, including telling a customer to keep away, extends liability to conduct that the employer had forbidden and that served no purpose of the business.