Vicarious liability


Author: Mike Tremeer


This article was published in www.screentrademagazine.com / Spring 2017/ screentrade

When are exhibitors responsible for the unexpected actions of their employees? Mike Tremeer, Senior Associate at Fladgate LLP, sheds some light on the matter by examining a recent case.

For many years, businesses have grappled with the issue of being held responsible for their employees’ actions. Often, responsibility can be assumed – an employee placed at the box office selling tickets is accepted to be acting as ‘the face’ of the business. Accordingly, the employer is expected to be accountable for the actions of the employee – including offering refunds and other remedies should the employee make an error. However, when the employee’s actions stray outside of normal day-to-day duties, will the employer be responsible, or can they distance themselves from the consequences?

Frustratingly, the answer to this question is that it depends on the circumstances. Case law over recent years confirms that – in an employment context – the answer will usually depend upon whether the act complained of is sufficiently closely connected with the employment for it to be just and fair to hold the employer liable.

Case Study

As an example, last year, the Supreme Court gave its decision in the case of Mohamud v WM Morrison Supermarkets plc. The case involved Mr Mohamud (M) – a man of Somali origin who visited a petrol station annexed to a Morrisons supermarket. In the kiosk, he asked Mr Khan (K), a Morrisons employee, if he could print some documents on his USB stick. K replied – amid expletives – that it would not be possible. When M objected to being sworn at, K, then using foul and racist language, told him to leave the premises. M left the kiosk and returned to his car, pursued by K. As M was about to drive away, K opened the passenger door ordering him never to return. M told K to leave his car which resulted in K punching M in the head. When M got out of his car to shut the passenger door, K attacked him again, punching and kicking him to the ground. Throughout the episode, K ignored the instructions of his supervisor who tried to stop him pursuing M.

M commenced a claim against Morrisons for personal injury, asserting that it was vicariously liable for the actions of K. Morrisons defended the claim on the basis that K’s actions were so far removed from his duties of employment that it was not just and equitable for them to be liable. K’s duties were to assist customers, such as M, with queries and K’s actions, which took place outside of the kiosk, amounted to a ‘frolic of his own’ for which they could not be liable.

The Supreme Court held that Morrisons was liable for K’s actions because the attack was sufficiently closely connected with his employment duties – serving customers and answering queries. They did not accept that K had metaphorically ‘taken off his uniform’ to pursue a personal matter.

Lesson

Cinema operators – amongst others, in the retail and leisure sectors, where interaction with customers remains a given – should take note as they may well find themselves responsible for the unforeseen or unexpected actions of their staff. Training employees on how to deal with challenging or difficult customers; implementing and enforcing codes of conduct which set out clear guidelines for behavioural standards expected of staff; and ensuring the adequate supervision and monitoring of employees are all steps that prudent employers will be taking in an effort to prevent such issues and liabilities from arising.

Mike Tremeer, Senior Associate, Fladgate LLP (mtremeer@fladgate.com)

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