The short answer to the question of whether a business is legally responsible for an employee’s violent criminal act is usually “no”. There are, however, important exceptions and the law has recently changed.
Most employers are aware that they have a legal duty to have employers’ liability insurance. This cover ensures that, if an employee is injured in the course of their work, an appropriate level of compensation can be paid in respect of the nature and severity of the worker’s injuries. Without insurance, a business could simply be unable to afford to pay the full amount of damages. With insufficient compensation, an employee may be unable to afford physio and other treatment, and therefore may be unable to make a full recovery.
An employer’s ability to cover the cost of an injured employer’s compensation is particularly important in regard to the legal principle of ‘vicarious liability’. Vicarious liability means that an employer can be held liable for the actions of an employee, if that employee injures another worker or a member of the public. A business could be vicariously liable for its employee’s actions or negligence, even if that employee causes an injury by ignoring their manager’s instructions or by breaching a safety protocol.
A court will decide whether or not vicarious liability applies by considering whether an accident or injury was caused by a worker during the ‘course of their employment’. ‘Course of employment’ can cover anything that is part of an employee’s role, such as operating machinery, stacking shelves, or interacting with customers, and will vary depending on the job. If a forklift driver injuries someone while driving their forklift truck, vicarious liability will likely apply and the driver’s employer is likely to be held liable. If that driver buys a cup of tea from a cafe, and spills the hot liquid on a co-worker on their way to work, the court are not likely to apply vicarious liability.
The majority of staff are not required to do anything that would be considered criminal in the course of their employment, and certainly would not be expected to commit any violent acts. As a result, the principle of vicarious liability is unlikely to apply if an employee assaults either a co-worker or a third-party. There are however, exceptions. Bouncers and security staff may be required to restrain people during their day-to-day job of ‘keeping order’. When carrying out their duties, these workers will be expected to recognise the line between reasonable force and assault. Their employer is also expected to provide them with sufficient training and monitoring to perform their role safely and with regard to the safety of others.
If a club bouncer, for example, seriously injures a rowdy patron when removing them from the premises, the bouncer’s employer could be held liable for the patron’s injuries. The law on this issue has been clarified recently, significantly widening the range of situations where an employer could be held liable.
A recent case, Mohamud v WM Morrisons PLC, was heard by the Supreme Court in March 2016. The case considered whether the supermarket could be held liable for the acts of an employee who worked behind the till at a Morrisons petrol station. The employee verbally abused a customer and then followed the customer to their car and physically assaulted them. In 2014, the Court of Appeal found that Morrisons were not liable, because the shop worker’s job role did not include an element of keeping order, and that the wrongful act did not constitute an abuse of the employee’s power nor furthered the employer’s aims.
Earlier this year, the Supreme Court overturned this decision, stating that the employee’s wrongful conduct was related to their role, as they were required to interact with customers, and that the assault was part of an ‘unbroken series of events’. The assault followed the employee’s interaction with the customer, during which the employee ordered the customer to leave the petrol station. The employee was purporting to ‘act about his employer’s business’ when he issued the order to keep away from Morrisons’ premises.
Chris Salmon, Director of Operations at Quittance, work accident claims specialists, said, “The Supreme Court’s decision was perhaps surprising, but we agree with the direction it takes. Before the result, employers might have tried to avoid liability by drafting very precise job roles for their staff, clearly defining that their course of employment, for example, excluded criminal acts. By widening the scope of what courts can consider a worker’s field of activities to be, the Court has put the law on a more practical footing. Injured parties have a better chance at getting redress for the harm that has been inflicted, and employers are now encouraged to take a broader view of training and support for staff. This could include guidance on how to handle difficult situations and confrontations, even if these cases sit outside the worker’s day-to-day job.”