Employers will be aware that they can be vicariously liable for acts of their employees if that act was carried out “in the course of their employment”.  For example, an employer will be liable for a road traffic accident caused by his employee when driving the company van.

However, employers will not be vicariously liable for all damage caused by an employee during working hours, as a recent case illustrates.

A customer visited a supermarket petrol station where the shop on the forecourt acted as a small convenience store.  The customer checked the tyre pressure on his car, went to the kiosk and asked one of the employees if he could print some documents which were stored on a USB stick he had.  The shop assistant responded abusively and made racist comments.  Two other employees also abused the customer.  The customer left the shop and walked to his vehicle, but was followed by the shop assistant who opened the front passenger door and punched the customer.  The customer got out of his car and the shop assistant continued the attack, punching the customer twice in the head, knocking him to the ground and continuing to kick and punch the customer as he lay curled up on the petrol station forecourt.

The customer sued the supermarket for the injuries.  He argued that where a customer interacts with an employee in a shop and is subjected to an assault, the employer is vicariously liable for the actions of its employee. 

The customer argued that the shop assistant who assaulted him should be regarded as “wearing the badge” of the employer and representing its brand standards, and where that employee was in a customer-facing role he is likely to have to respond to a variety of enquiries and approaches.  The shop assistant may have to deal with customers who are provocative or difficult and therefore situations of friction or confrontation were to be expected. 

The customer argued that the attack on him was not an incidental or random assault but arose during the actual interaction between the employee and himself, so the assault was clearly committed within the parameters of the employee’s duties. 

The supermarket argued that the crucial question here was the closeness of the connection between the wrongful acts of the employee and his duties.  The employer stressed that the employees’ duties did not involve any element of keeping “public order” or exercising authority over the customer (like a security guard/doorman) and the mere opportunity for interaction between a sales assistant and a customer was not sufficient to create vicarious liability.

Employers will be pleased to hear that the court found that in these particular circumstances, given the nature of the employment and the circumstances of the assault, there was no “close connection” between the employment and the conduct of the employees.  In the light of this, the court refused to hold that the employer was vicariously liable. 

The court expressed sympathy for the customer who was the innocent victim of an unprovoked attack involving serious consequences.  It appreciated that many would feel that the employer should be liable, as the assault was carried out on the employer’s premises during working hours.  The court said that the law was not yet at a stage where the mere fact of contact between a sales assistant and a customer is in itself sufficient to fix the employer with vicarious liability. 

This case will assist an employer where an employee goes on a “frolic of his own” and the employer is sued because of that conduct. Prudent employers will clearly set out, in a handbook or policy, the standards of conduct expected from employees no matter what role they perform.

Reggie Lloyd
01206 217347
reggie.lloyd@birkettlong.co.uk