FOR ASSAULTS, BULLYING AND HARASSMENT OF EMPLOYEES?
Up until recently, common law countries like Britain, Australia, India and Canada accepted that employers would not be liable for employee assaults on customers or fellow employees. Courts in those countries accepted that such outrageous behaviour fell outside of the contract of employment and that employers could not be held fiduciarily (or automatically) liable for the injuries, damages or losses sustained by customers, members of the public or fellow employees.
A recent decision by the highest court in the United Kingdom in 2016 questions that restriction and suggests that employers may, in fact, be liable for a much wider range of employee conduct than has been considered possible previously. That decision is Mohamud v. WM Morrison Supermarkets plc. Whilst not binding on Australian courts, decisions by the United Kingdom Supreme Court (previously known as the House of Lords) are regarded as having significant influence or precedent effect on Australian Federal and State/ Territory Courts.
The facts in Mohamud were that Mr. Mohamud entered Morrison’s supermarket petrol station kiosk where customers had to pay for purchases. He requested the employee, Mr. Khan, to print some documents from a USB stick. Khan was employed by Morrison’s supermarket to ensure that the petrol pumps and the kiosk were kept in good order as well as serving customers. He rejected Mohamud’s request. Khan became verbally abusive. When Mohamud left the kiosk, Khan followed him out and told Mohamud never to come back to the supermarket. He then subjected Mohamud to a serious assault. Mohamud brought proceedings against Morrison Supermarkets upon the basis that it was vicariously liable for the actions on its employee. At both first instance and in the Court of Appeal, Mohamud’s claim was rejected upon the basis that there was no close connection between what Khan was employed to do and his unlawful conduct in attacking and injuring Mohamud.
On appeal to the Supreme Court, the Supreme Court unanimously allowed Mohamud’s appeal and held the supermarket vicariously liable for the actions of its employee, Khan. The Supreme Court decided that two matters were relevant: first, the Court must ask what functional field of activities has been entrusted by the employer to the employee and, secondly, whether there was a sufficient connection between the position in which he was employed and his wrongful conduct to make it reasonable for the employer to be held responsible for the employee’s actions.
In applying this test, the Supreme Court noted that it was Khan’s job to deal with customers. Interacting with customers was within the scope of his activities and what he was employed to do. These activities and the link to his employment did not cease at the moment he came out from behind the counter and followed Mohamud into the forecourt. When Khan told Mohamud not to come back to the petrol station, there was no personal issue between them. Khan was ordering Mohamud to keep away from his employer’s premises, something he was employed to do. The giving of the order was within the purported scope of his actions to protect his employer’s business. The Supreme Court decided that Khan’s motive in the attack was irrelevant. The fact that it might have been motivated by personal racism rather than a desire to benefit his employer’s business was not relevant.
This decision, which will need to be considered by Australian courts, indicates that employers will face a wider range of responsibilities caused, for example, by a manager bullying an employee, employees harassing colleagues or employees dismissing other employees.
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