In Mohamud v WM Morrison Supermarkets plc, Mohamud (M), who is of Somali descent, entered the supermarket’s petrol station kiosk after checking his tyres and asked a Morrison’s employee, Khan (K), if it was possible to print off some documents which were stored on a USB stick. K responded in abusive fashion, including racist language. M left the kiosk and walked to his vehicle. K followed, shouted violent abuse at M and then proceeded to punch and kick M in an attack which a High Court (HC) judge described as “brutal and unprovoked”. The judge, however, found the mere fact that K was an employee, that the assault happened on the employer's premises, and that K was required to interact with customers as part of his duties was not sufficient to bring this case within the necessary close connection in relation to employment so as to makes Morrison’s vicariously liable for K’s actions.

The Court of Appeal upheld the HC’s decision. The focus of the appeal was whether there is a sufficiently close connection between the employee’s wrongdoing and the employment so that it would be right to hold the employer vicariously liable. Given the facts – the nature of K's employment and the particular circumstances of the assault – there was no element which could bring this case within the close connection test. The Court had natural sympathy for M. It appreciated many would feel if the employee did what he did on the employer's premises at a time when the contact between M and K arose out of the fact that the employer was carrying on its business, the employer should be liable. But, the law is not yet at a stage where the mere fact of ‘normal’ interaction between a sales assistant and a customer, which is plainly authorised by an employer, is of itself sufficient to make the employer vicariously liable.

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