A M Mohamud (in substitution for Mr A Mohamud (deceased)) v WM Morrison Supermarkets plc

Vicarious liability requires a qualifying relationship between the defendant and wrongdoer, followed by a sufficient connection between that relationship and the wrong.

For an employee, the court must identify the entrusted field of activities broadly and decide whether the employee used or misused that position in a way which makes employer liability just. An unbroken episode arising from customer-facing duties may remain sufficiently connected when the employee purports to act about the employer’s business and reinforces that position with violence.

A personal motive, gross abuse of position or disobedience of instructions does not necessarily sever the connection. The established close connection test remains applicable; a representative capacity formulation would not improve it.

The claimant visited a supermarket petrol station and asked whether documents could be printed from a USB stick. An employee whose duties included serving customers responded with racist, threatening and abusive language. He followed the claimant from the kiosk to his car, ordered him never to return and subjected him to a serious physical assault.

The trial recorder dismissed the claim against the employer because the assault was not sufficiently connected with the employee’s circumscribed duties. The Court of Appeal upheld that decision in [2014] EWCA Civ 116. Following the claimant’s death, the substituted appellant appealed, proposing a broader representative capacity test or, alternatively, liability under the existing close connection test.

The central issue was whether the connection between the employee’s assigned customer-facing role and the assault made it just to impose vicarious liability on the employer.

1. Appeal allowed unanimously. Lord Toulson delivered the leading judgment, with which Lord Neuberger, Lady Hale, Lord Dyson and Lord Reed agreed. The employer was vicariously liable for the employee’s assault.

2. Vicarious liability requires a qualifying relationship between the defendant and wrongdoer and a sufficient connection between that relationship and the wrong. Where the wrongdoer is an employee, the court must first identify, broadly, the functions or field of activities entrusted to the employee. It must then decide whether the connection between the employment position and the wrongful conduct makes employer liability just. The inquiry is evaluative and cannot usefully be reduced to a numerical measure of closeness.

3. The approach in Lister v Hesley Hall Ltd [2001] UKHL 22 and Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48 remained sound. The proposed representative capacity formulation offered no substantive improvement. The established test focuses on whether the employee used or misused an entrusted position to injure the claimant, viewed in the light of social justice and previous decisions.

4. The employee’s duties included attending to customers and responding to enquiries. His initial abusive response therefore occurred within his assigned field of activities. His subsequent pursuit of the customer onto the forecourt was part of a seamless and unbroken episode. In ordering the customer never to return, the employee purported to act about his employer’s business and reinforced that order with violence. Leaving the kiosk did not amount to taking off his employment role.

5. The assault was a gross abuse of the position entrusted to the employee, but that did not sever its connection with the employer’s business. His personal racist motive was irrelevant, as was the absence of any intention to benefit the employer. It was just, as between the employer and the injured customer, that the employer should bear responsibility for the abuse of the entrusted position.

6. Lord Dyson added that an established evaluative test should be replaced or refined only if a demonstrably better test could be devised. Representative capacity was itself hopelessly vague, while some imprecision was inevitable in this area of law. He agreed that the close connection test should remain and that it was satisfied on the facts.

• United Kingdom Supreme Court: In [2016] UKSC 11, unanimously allowed the appeal, reversed the conclusion below and held the employer vicariously liable.
• Court of Appeal: In [2014] EWCA Civ 116, upheld the recorder’s decision that the claim failed the close connection test.
• Trial: The recorder dismissed the claim, holding that the employee’s assault was insufficiently connected with his customer-service duties.