The Supreme Court has today (2 March 2016) handed down a unanimous judgment which will doubtless send employers throughout England and Wales into momentary despair.
In allowing the appeal, overturning the decision of the Court of Appeal (and that of the judge at first instance), significant inroads have been made into the employers’ defence of “frolic of their own”.
In this case, Mr Mohamud was both verbally and physically attacked at the hands of a Morrison’s employee.
In the lower courts, the tortious conduct complained of was held to be insufficiently connected to the employee’s job.
The Supreme Court, however, held the nature of the job was to be viewed broadly (at ). The employee here, one Mr Khan, was employed to attend to customers and respond to their inquiries.
The attack on Mr Mohamud followed seamlessly on from an inquiry made of Mr Khan; it did not matter whether the attack was motivated by personal racism rather from a desire to benefit his employer’s business (at ).
Whilst the Supreme Court was at pains to make clear it was applying the close connection test, the requirement to view the nature of the job broadly may well have materially widened the scope of vicarious liability.
The full judgment can be found here: