Are you liable for staff crimes?

By Alan Delaney

By Alan Delaney. Alan Delaney is a director in the employment and pensions team at Maclay Murray & Spens and a member of the firm’s Food and Drink team
Alan Delaney is a director in the employment and pensions team at Maclay Murray & Spens and a member of the firm’s Food and Drink team.

A Supreme Court decision confirms that employers can face liability for crimes committed by staff even if there is little evidence of obvious failing by the company

The decision of the Supreme Court in the case of a man attacked by a racist petrol station attendant who worked for a supermarket company shows the danger to employers of criminal activity by staff and the need for employers to take steps to minimise exposure to such dangers.

What actually happened in the case concerned?
The case of Mr A M Mohamud v Wm Morrison Supermarkets PLC concerned Mr Mohamud’s visit to a Morrisons petrol station. He had approached a Morrisons employee and asked whether it was possible to have some documents printed from a USB stick. The employee followed Mr Mohamud back to his car, violently attacked him and ordered him to stay away from the petrol station.

What was the nature of the claim?
Mr Mohamud brought proceedings against Morrisons claiming it was vicariously liable for the actions of its employee. His case was unsuccessful at first instance, and also before the Court of Appeal, with the view being taken that there was an insufficiently close connection between what the employee was employed to do and his conduct in attacking Mr Mohamud.
Mr Mohamud appealed to the Supreme Court. He sadly died of an unrelated illness before his appeal was heard and his family continued the action.

What did the Supreme Court decide?
The Supreme Court unanimously allowed the appeal and held that Morrisons was liable for its employee’s violent actions. It found that there was a sufficiently close connection between the employee’s role – which was to serve customers and interact with them – and his violent conduct.
On giving the judgment, Lord Toulson said: “I do not consider that it is right to regard him as having metaphorically taken off his uniform the moment he stepped from behind the counter … he was purporting to act about his employer’s business.
“It was a gross abuse of his position, but it was in connection with the business in which he was employed to serve customers. His employers entrusted him with that position and it is just that as between them and the claimant, they should be held responsible for their employee’s abuse of it.”
The fact that the employee was motivated by personal racism was not considered relevant.

What should employers be doing?
Employers in the grocery sector are, of course, unlikely to be able to eliminate all risk of unpredictable criminal behaviour by their employees. However this case acts as a reminder that they do have responsibilities to ensure that those they employ carry out their duties appropriately.
There are sensible steps that can be taken to minimise the risk of such inappropriate behaviour. References should be taken up as part of the recruitment process. Induction sessions should clearly communicate the types of behaviours that are promoted by the organisation and those that will not be tolerated. Managers should be trained to deal with inappropriate behaviour whenever it arises and also to support employees through difficult periods.
It is very clear that turning a blind eye to inappropriate behaviour is not an option and risks significant liability.