As reported here, last June, in Vaickuviene v Sainsbury the Outer House of the Court of Session in Scotland refused to strike out a case claiming Sainsbury was vicariously liable for the murder of one employee by another. On 11 July, the Inner House ( CSIH 67), the equivalent of the English Court of Appeal, overturned that decision.
Robert McCulloch, a member of the BNP, admitted stabbing Roman Romasov to death in 2009. The murder followed several months of racist, insulting and aggressive conduct by McCulloch towards Romasov.
His family brought a claim against Sainsbury asserting that McCulloch’s conduct amounted to harassment in breach of the Protection of Harassment Act 1997, a course of conduct which ended with the fatal stabbing to death of the target, Mr Romasov.
In bringing the claim, no fault was attributed to Sainsbury but it was said it was vicariously liable. Sainsbury sought to have the case struck out on the grounds that it was not but that application failed with the Outer House considering that the case needed to go to full trial to determine the issue.
As will be recalled, Lister v Hesley Hall (2001) UKHL 22 shifted the focus of vicarious liability from the concept of ‘acting in the course of employment’ to the question of whether the activity was sufficiently closely connected to the employment that it is just and fair to impose liability.
Reviewing the several cases since Lister which have dealt with this issues, the Inner House considered that it was for a Claimant to identify how the conduct complained of was connected with the wrongdoer’s duties rather than simply the employment generically.
Lister (and several other cases) imposed vicariously liability for child abuse. As it is hard to imagine anything further removed from a job description, it is easy to imagine that an employer would be vicariously liable for pretty much any wrongdoing.
The Inner House’s analysis showed that it is more complicated than that. Simply bringing people together and affording the opportunity for wrongdoing is not sufficient to impose vicarious liability.
The essential question is whether there is a connection between what the employee was engaged to do by the employer (i.e. the duties of the employment) and the wrongdoing. Here, the Inner House took the view there was no such connection:
“Mr McCulloch was engaged to stack shelves in retail premises. Looking at the matter in as broad a context as possible, there is no connection between the harassment and/or murder of the deceased on the one hand and the stacking of shelves by either employee of the retail[er] of goods to the public on the other.”
At first blush it may be hard to know where to draw the line in these cases. Why may an employer be vicariously liable for child abuse but not for a murder? Both are acts which the employer would utterly abhor and condemn and neither of which would be considered any part of the employee’s duties.
Here, the Inner House relied on what might be seen as a reversion to the ‘old’ concept of whether the wrongdoing was on the one hand an unauthorised mode of doing the job or
“whether the wrongful actings were, on the other hand, a ‘frolic’ of the employee’s own devising and execution and thus unconnected with what he was employed to do“.
In the former situation, there would be vicarious liability but not in the latter.
In short, in every case, it will not be sufficient to say that something happened at or through work. It will be necessary to point to a direct link between the wrongdoing and the employee’s job.
Incidentally, although it proved irrelevant to the decision, the Inner House also cast doubt on the merit of the claim under the Protection from Harassment Act. In fairness this was more because they doubted the relevance of the claim than anything else.
It was accepted that an assault, even a fatal one, might properly form part of a course of conduct of harassment but didn’t see the point of relying on a course of conduct when the assault could stand alone. Fair point really.