Last week, the Supreme Court ruled that Morrisons were vicariously liable for the behaviour of one of its employees which included an unprovoked racist assault on a customer.
The ruling will be difficult to comprehend by many particularly as the assailant was not acting on any instructions from his employer and indeed appeared to be on, what might be referred to as “a complete frolic of his own”.
The notion of vicarious liability is not easily grasped by employers. Nor does it always appear to produce fair outcomes. With some justification employers (particularly those unrepresented) can be heard to plea in Employment Tribunals that certain acts of their employees were below their field of vision and not the type of behaviour that you would ordinarily expect. Employers might be heard to protest:
“how can I be expected to watch over the actions of all my staff every working hour of every working day to make sure they don’t fall foul of equality legislation or indeed the criminal law?. I’ve work to do and a business to run”
But the concept of vicarious liability is not a new one. As the Supreme Court noted in yesterday’s judgment it began to develop at the beginning of last century.
No doubt many people will be analysing yesterday’s judgement to see what more employers need to do now to protect themselves against this sort of liability. But the truth is that the answer is already clear. It’s just a pity and also quite surprising that employers don’t follow the advice that many employment lawyers would offer them.
The employer needs to do 3 things :
1. Have an up-to-date equality and diversity policy
2. Have an up-to-date equality and diversity policy that is actively implemented throughout the organisation
3. Do regular (preferably annual) equality and diversity training for all staff.
These actions will not prevent every example of the type of behaviour under scrutiny by the Supreme Court yesterday but they provide the best chance for an employer to root out and deal with employees who are likely to be behave like this. They also provide the best opportunity for an employer to prove it had done all it reasonably could be expected to do to make sure an incident similar to the one in this case never took place.
Vicarious liability is not an absolute concept but it does require all employers to be proactive.
Mr A M Mohamud (in substitution for Mr A Mohamud (deceased)) v WM Morrison Supermarkets plc  UKSC 11
Barry Phillips is a former practising barrister and now chairman of Legal-Island a leading compliance company Legal-Island