Last week, the Supreme Court ruled that Morrisons were vicariously liable for the
behaviour of one of its employees which included an unprovoked racist assault
on a customer.
The ruling
will be difficult to comprehend by many particularly as the assailant was not
acting on any instructions from his employer and indeed appeared to be on, what
might be referred to as “a complete frolic of his own”.
The notion
of vicarious liability is not easily grasped by employers. Nor does it always
appear to produce fair outcomes. With some justification employers (particularly
those unrepresented) can be heard to plea in Employment Tribunals that certain
acts of their employees were below their field of vision and not the type of
behaviour that you would ordinarily expect. Employers might be heard to
protest:
“how can I be expected to watch
over the actions of all my staff every working hour of every working day to
make sure they don’t fall foul of equality legislation or indeed the criminal
law?. I’ve work to do and a business to run”
But the
concept of vicarious liability is not a new one. As the Supreme Court noted in
yesterday’s judgment it began to develop at the beginning of last century.
No doubt
many people will be analysing yesterday’s judgement to see what more employers
need to do now to protect themselves against this sort of liability. But the
truth is that the answer is already clear. It’s just a pity and also quite
surprising that employers don’t follow the advice that many employment lawyers
would offer them.
The employer
needs to do 3 things :
1. Have an
up-to-date equality and diversity policy
2. Have an
up-to-date equality and diversity policy that is actively implemented
throughout the organisation
3. Do
regular (preferably annual) equality and diversity training for all staff.
These
actions will not prevent every example of the type of behaviour under scrutiny
by the Supreme Court yesterday but they provide the best chance for an employer
to root out and deal with employees who are likely to be behave like this. They
also provide the best opportunity for an employer to prove it had done all it
reasonably could be expected to do to make sure an incident similar to the one
in this case never took place.
Vicarious
liability is not an absolute concept but it does require all employers to be
proactive.
Mr A M
Mohamud (in substitution for Mr A Mohamud (deceased)) v WM Morrison
Supermarkets plc [2016] UKSC 11
Barry
Phillips is a former practising barrister and now chairman of Legal-Island a
leading compliance company Legal-Island
