When might a school be liable for a wrongful act of an employee?

The Supreme Court unanimously ruled that an employer was "vicariously liable" for the actions of its employee in an unprovoked attack on a customer.

For an employer to be vicariously liable for the actions of an employee, there must be a sufficiently "close connection" between what the employee was employed to do and the wrongful conduct.

The facts and decision

In March 2008, Mr Mohamud (who was of Somali origin) entered the kiosk at a Morrisons petrol station where Mr Khan was working and asked if he could print off documents from his USB stick. Mr Khan responded with racist and abusive language. He followed Mr Mohamud to his car and subjected him to a serious attack. Mr Khan ignored the instructions of his supervisor who tried to stop the attack.

The High Court decided that there was not a close enough connection between the actions of Mr Khan and what he was employed to do. The fact that Mr Khan was an employee, that the assault happened on the employer’s premises, and that he was required to interact with customers in the course of his duties was held not to be sufficient reason to find Morrisons vicariously liable. This was upheld by the Court of Appeal.

The Supreme Court did not agree. In allowing the appeal, the court found that Mr Khan's conduct was within the "field of activities" assigned to him (attending to customers and responding to their enquiries). It did not "consider that it is right to regard [Mr Khan] as having metaphorically taken off his uniform the moment he stepped from behind the counter". The attack was not a personal one, but took place in connection with the employer's business (an order to stay away from the petrol station) and involved an abuse of Mr Khan's position as employee.

Comment

Schools may be liable for the wrongful conduct of an employee, even when that conduct is clearly not sanctioned by the school. This case suggests that vicarious liability may be found even where the employee is given clear instructions to avoid confrontation or where staff are placed in a situation where violent behaviour may be likely. This includes staff responding to the behaviour of pupils or parents.

This case follows the 2001 House of Lords case of Lister v Hesley Hall Ltd in which a boarding school was found liable for the damage caused by a house warden who sexually abused pupils. The court in that case stated that the school was liable because the house warden was specifically employed to look after children; liability may not have been found if the abuser was, for example, a groundsman who was not charged with looking after children.

Schools, and other organisations working with children, should note that they may also be vicariously liable for a member of staff's negligent failure to report abuse of which that member of staff was aware.

March 2016