In Lister v Hesley Hall Ltd, the House of Lords held that employers will be liable for an employee’s wrongdoings where the wrongful acts he or she has committed were so closely connected with their employment that it would be fair and just to hold the employers vicariously liable. This ‘sufficiency of the connection’ can be gauged by asking whether the wrongful acts can be viewed as ways of carrying out the work which the employer has authorised. On that basis, in the Lister case, the employer of a warden at a school boarding house was held liable for his sexual abuse of boys in his care.

In Mohamud v WM Morrison Supermarkets plc, Mr Mohamud (M) entered a Morrison’s petrol station kiosk to ask whether he could print some documents from a USB stick. A Morrison’s employee, Mr Khan (K), who refused M’s request in a rude manner. M protested and K responded in foul, racist and threatening language, ordering M to leave. M returned to his car, K followed him, opened the passenger door, told the M in threatening words never to return and punched him on the left temple. M got out and walked round to close the passenger door. K then punched M in the head, knocked him to the floor and punched and kicked M while he lay curled up on the forecourt. K’s supervisor tried to stop him.  

A trial court judge rejected M’s claim that Morrison’s were vicariously liable for the actions of its employee, K, on the basis that there was an insufficiently close connection between what K was employed to do and his assault on M. The Court of Appeal upheld the judge’s decision and M appealed to the Supreme Court, who unanimously upheld M’s appeal holding that Morrison was vicariously liable for the actions of K, in attacking M.

The Supreme Court held that the nature of an employee’s job is to be viewed broadly. Then it has to be decided whether there was a sufficient connection between the employee’s job and his wrongful conduct to make it right for the employer to be held liable. Here, K’s job was to serve customers. So, interacting with customers was within the activities assigned to him by his employer. The connection between M’s activities and his employment did not cease at the moment when he came out from behind the counter, followed M to the forecourt and assaulted him. K did not ‘metaphorically take off his uniform’ the moment he left the kiosk; and when K told M not to come back to the petrol station, that was an order to keep away from his employer’s premises.

It would appear that in holding that the nature of an employee’s job is to be viewed broadly, the Supreme Court has applied the Lister test widely, scotching any notion that liability can only arise where it would be reasonable to foresee that there is a risk of harm in an employee’s duties, e.g. a store security guard apprehending shoplifters. This ruling will make it easier to establish vicarious liability in similar cases and employers need to consider what can be done to minimise the risk of violence in the workplace.

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