Sun | Sep 24, 2017

Laws of Eve: Employers, beware

Published:Monday | April 11, 2016 | 4:00 AM

In the 2004 Privy Council decision in the case of Clinton Bernard v the Attorney General of Jamaica, the Government was found liable for the actions of an off-duty police officer who shot the claimant after he declined to allow him to use a pay telephone ahead of him. The rationale was that the police officer was not acting as an ordinary person, although he was off duty. He purported to exercise his official authority.

Even after that ruling, it might have still seemed unlikely for an employer to be held liable for the criminal acts of his employee. However, the unanimous decision of the United Kingdom's Supreme Court on March 2, 2016 in the case of Mr A M Mohamud (in substitution for Mr A Mohamud (deceased)) (Appellant) v WM Morrison Supermarkets plc (Respondent)[2016] UKSC 11 might force us to reconsider that view.

 

BACKGROUND

 

Mohamud, a man of Somali descent, went to a petrol station operated by Morrison. After checking the air pressure in his tyres, he went to the kiosk and asked whether he could print documents from a USB stick. Morrison's employee, Khan, refused and used "foul, racist and threatening language" in ordering Mohamud to leave. Mohamud returned to his car, got in and started to leave when Khan followed him, opened the passenger door of the car and punched him in his temple.

Mohamud switched off the car, got out to close the passenger door when Khan "punched him in the head, knocking him to the ground, and subjected him to a serious attack, involving punches and kicks, while the claimant lay curled up on the petrol station forecourt, trying to protect his head from the blows". Khan carried out the attack ignoring the instructions of his supervisor, who tried to stop him.

The court directed itself to ask two questions:

1. In a broad sense, what is the nature of the job the employee was employed to do?

2. Under a system of social justice, was there sufficient connection between the position in which the employee was employed and his wrongful conduct, to make it right for the employer to be held liable?

The trial judge ruled in Morrison's favour and stated that, "There was not a sufficiently close connection between what [Khan] was employed to do and his tortious conduct, for his employer to be held vicariously liable." The Court of Appeal upheld that ruling, but the Supreme Court ruled in Mohamud's favour for the following reasons:

• Khan's job was to attend to customers and to respond to their inquiries. His conduct was inexcusable but within the "field of activities" assigned to him. What happened thereafter was an unbroken sequence of events.

• It is not right to regard Khan as having metaphorically taken off his uniform the moment he stepped from behind the counter.

• When Khan followed Mohamud back to his car, there was nothing personal between them; it was an order to keep away from Morrison's premises, which he reinforced with violence. He was purporting to act about Morrison's business and, although it was a gross abuse of his position, it was in connection with the business in which he was employed to serve customers.

• Morrison entrusted Khan with that position, and that is all there was between them and Mohamud, so they should be held responsible for Khan's abuse of it.

• It was irrelevant that Khan was motivated by personal racism.

In the past, it was much easier to assess whether an employer could escape liability by asserting that the employee was on a "frolic of his own" when he carried out a particular act. Today, employers must feel that the limited scope for raising such a defence has narrowed even further.

• Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com