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Employers’ liability: Vicarious liability – s.8 Protection from Harassment Act 1997

Vaickuviene and Others v J Sainsbury Plc
11 July 2013
Inner House, Court of Session

The court had to consider a claim brought by the relatives of a Lithuanian national, who had been employed by the defenders. While at work in one of the defenders’ supermarkets, he was murdered by a co-worker. The claimants raised an action for damages based solely on the defenders’ vicarious liability for the actions of the co-worker claiming that those actions constituted harassment in terms of s. 8 Protection from Harassment Act 1997 (the 1997 Act). The court was not persuaded that it was possible to categorise the co-worker’s actions as sufficiently closely connected with his employment so as to give rise to any vicarious liability on the part of the defenders.

Facts

Both the deceased and M were employed as shelf stackers and regularly worked together on nightshift. M was a member of the British National Party and was known to have racist views and a specific dislike of immigrant workers. There had been a history of bad relations between the two employees, with M frequently making racist comments and being aggressive and argumentative towards the deceased. Two days before the murder, M had made a racist comment to the deceased, who had written a letter of complaint to the Defenders. No action was taken in response, but M became aware that a complaint had been made against him. On the night of the murder, an argument began and M attacked and killed his fellow employee with a kitchen knife from the supermarket’s kitchenware section. The Claimants argued that M’s conduct towards the deceased amounted to harassment under s8 of the 1997 Act, for which the Defenders were vicariously liable. The Defenders asked the court to dismiss the action on the basis that the Claimants had failed to state a case that demonstrated a “close connection” between the wrongful act of M and his duties as an employee. Both parties accepted that the “close connection” test related to “the task with which the employee had been charged and the conduct complained of”. The Defenders argued that a necessary and critical connection between M’s job and the murder had to be established and that the Claimants’ written pleadings failed to set out sufficient facts to enable them to establish that there was such a connection. The judge considered, however, that the Claimants’ case could be construed as offering to prove that there was a connection between M’s work and the way in which he had responded to the Defenders’ choice of fellow employee and in his reactions to the deceased’s complaint against him. She concluded that the Claimants had put forward a sufficient case to allow the matter to proceed to proof (trial).

The Defenders appealed that decision to the Inner House of the Court of Session.

Appeal

On appeal, the Defenders reiterated that the “close connection” which had to be established in order to found vicarious liability under section 8 of the 1997 Act had to be between the harmful act and the duties of the wrongdoing employee. The judge at first instance had been incorrect to proceed on the basis that it was sufficient to establish a connection between the murder and M’s employment in the broader sense. The correct approach was firstly to examine the connection between M’s duties and the harm done to the deceased. If there was any doubt as to whether the required connection existed, it was then necessary to consider whether the employee’s duties created or increased the risk of the harm occurring. The Defenders argued that, when he murdered the deceased, M had been engaged on a purely “private venture” unconnected with his duties in the Defenders’ business. There was nothing in his duties that involved confrontation with others, nor the creation of a risk, for example, through the supply of a lethal weapon. M had been employed to stack shelves and this activity did not carry with it any risk of violence. The Claimant’s case should have been dismissed and should not be allowed to proceed to proof (trial).

Decision

The appeal court noted that, until recently, the principles in the area of vicarious liability had remained reasonably well established and understood. Those principles had been re-visited recently in the case of Wilson v Excel UK 2010 SLT 671, in which it had been stressed that the test remained one of whether the actions of the employee were “within the scope of his employment”. The present case should be approached in a similar way in that the general question of whether vicarious liability attaches ultimately depends on whether the wrongdoing employee’s actions were so closely connected with his employment that it would be “fair and just” to find the employer liable. The appeal court was not persuaded that it was possible to categorise M’s actions as sufficiently closely connected with his employment as to give rise to any vicarious liability on the part of the Defenders. On that basis, the appeal was granted and the case was dismissed.

Comment

This is an interesting case, which raised challenging issues and the decision contains a very useful and thorough analysis of the law of vicarious liability. The concept of vicarious liability is a developing one which, particularly in recent years, has had to evolve to take into account developments in society. The appeal court was not prepared to accept the Claimants’ contention that the expression “in the course of his employment” should be treated as equivalent to “at work”. The decision in this case confirms that, when considering whether vicarious liability arises, the question is still whether there was a close connection between the duties which the employee was engaged to undertake and the wrong doing. As M was engaged to stock shelves in a supermarket, there could not be said to be any connection between the harassment and murder of the deceased and that activity.

The comments of the Lord Justice Clerk are of particular interest as he warned against allowing this area of law to develop in a way that would undermine the need for certainty in the field of employers’ liability too significantly. As the appeal court pointed out, it is easier to establish a successful claim based on vicarious liability under the 1997 Act in situations where, for example, the employee whose actions are complained of is in a managerial or supervisory position in relation to the alleged victim of harassment.

It is interesting that, in this case, the Claimants’ case was bought exclusively under the 1997 Act, as opposed to on the basis of direct liability. Would it have been possible, for example, to argue that there was a duty on the Defenders, as employers, to take reasonable care to employ competent staff and to supervise their activities while on the Defenders’ premises? The fact that they had employed M, who was known to have extreme right wing views and antipathy towards immigrant workers, might have been a basis for suggesting that the Defenders were in breach of that duty. The fact that he had a known propensity to be violent to immigrant workers was not relevant to the issue of vicarious liability, however.

The judgment

Contact

For further information please contact Catherine Hart,
Professional Support Lawyer (Scotland) on 0141 228 8084

By Catherine Hart

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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