4 March 2016: Vicarious Liability:

Last week we asked whether the BBC could be vicariously liable for Jeremy Clarkson punching and abusing his producer.

The Supreme Court has considered vicarious liability in employment this week in Mohamud v WM Morrison Supermarkets plc. Mr Mohamud was a customer who was assaulted and racially abused by Mr K, an employee of a supermarket petrol station while ejecting him from the premises. Did that establish a sufficiently close connection between the wrongdoing and the employment?

There are two elements to that test of sufficiently close connection:

First, the nature of the job entrusted to the employee must be considered broadly;
Secondly, the court must enquire whether there was a sufficient connection between the employee’s position and his or her wrongful act to make it right, under the principle of social justice, to hold the employer liable for the wrongdoing.

The Supreme Court held that the supermarket was vicariously liable: It was Mr K’s job to attend to customers. His conduct, though inexcusable, was within the ‘field of activities’ assigned to him. Mr K was purporting to act on the supermarket’s business by ejecting Mr Mohamud, albeit violently.

In the linked case of Cox v Ministry of Justice; Ms Cox was a catering manager in a prison where a prisoner accidentally dropped a bag of rice on her while he was working in the kitchens. The prison was vicariously liable: The prisoner may not have been an employee, but he was integrated into the kitchen operation and the prison had given him kitchen duties. The prison was liable for the prisoners’ negligence

The BBC was therefore probably sensible to settle the Jeremy Clarkson action when it did. In the meantime, many employers will be checking their Public Liability Insurance.