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.
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.
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).
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.
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