Employer criminal liability


Employers can face criminal prosecutions over workplace violence as well as civil claims for compensation.


In July 2012 the Court of Appeal ruled that a social worker, who was stabbed by a psychiatric patient for whose child she was responsible, had the right to sue two health authorities responsible for her attacker’s care. Claire Selwood was stabbed six times by Graham Burton after he confronted her during a professional conference at his child’s school in County Durham. Just two days earlier he had told medical staff at Cherry Knowle Hospital, Sunderland that he would kill her on the spot if he saw her — the last of a number of threats that were not acted upon. Selwood suffered life-threatening injuries and was profoundly traumatised by the ordeal.


The claim was taken against her employer, Durham County Council, the Tees Esk and Wear Valley NHS Trust and Northumberland Tyne and Wear NHS Foundation Trust. The case against the two NHS Trusts was initially dismissed by Newcastle County Court on the grounds that they did not owe Ms Selwood a duty of care, but she was given leave to appeal. The Court of Appeal accepted it was arguable that the two NHS Trusts did owe her a duty of care based on their responsibilities under an agreed protocol. Public services union UNISON supported her case and she later settled a claim for compensation out of court.


A number of cases have looked at whether assaults by employees occurred within the course of employment and whether the employer was “vicariously liable” for these.


The co-joined cases, Weddall v Barchester Healthcare Ltd and Wallbank v Wallbank Fox Designs Ltd [2012] EWCA Civ 25 CA, looked at whether assaults on managers by other employees occurred within the course of employment and whether the employer was “vicariously liable” for these.


In Weddall, a care home manager phoned a member of staff to ask if he would work an extra night shift to replace an employee who had called in sick. The employee concerned was very drunk and thought that the manager was mocking him. He went to the care home and violently assaulted the manager. In Wallbank, a manager reprimanded an employee who responded to the reprimand by violently assaulting him. The Court of Appeal said that where an employee inflicts violence on another employee or third party, the vicarious liability of the employer depends on the closeness of the violent act to the employee’s employment.


In the first case, it concluded that the employee was not acting in the course of his employment and that the employer was not vicariously liable for his violent act. In the second, it decided that the assault was in response to a lawful instruction and done in the course of his employment. It held that the employer should therefore bear vicarious liability.


In Vaickuviene v J Sainsbury plc [2013] IRLR 792, a Lithuanian national working stacking shelves at a supermarket was murdered at work by a colleague who was a member of the British National Party. He had previously made frequent racist comments and was aggressive. The claim failed on the basis that there was not a sufficiently close connection between the perpetrator’s actions and the work he was employed to carry out: “In the course of employment” does not have the same meaning as “at work”.


More recently, in March 2016 the Supreme Court ruled that supermarket chain Morrisons was liable for the actions of its employees after a man was assaulted by a petrol station attendant in March 2008.


In Mohamud v W M Morrison Supermarkets plc [2016] IRLR 362, Mr Mohamud launched a claim for compensation against Morrisons for the actions of its employee, Amjid Khan, who was working in one of the supermarket’s petrol station kiosks when he violently attacked Mohamud. Both the High Court and the Court of Appeal had previously found that Morrisons was not responsible for the attack, but the Supreme Court ruled in favour of Mohamud. It considered the so-called “close connection” test. It found that although Khan had grossly abused his position, his conduct was sufficiently connected to the job for which he had been employed that Morrisons should be held responsible for its employee’s abuse of it.


At the same time as it ruled on Mr Mohamud’s claim against Morrisons, the Supreme Court considered a separate claim against the Ministry of Justice, brought with the support of the Prison Officers’ Association (POA), Cox v Ministry of Justice [2016] UKSC10. Both claims have important wider implications for workers at risk of violence, but Cox, in particular, is significant because it concerned the liability of an organisation for a non-employee.


In Cox, the Supreme Court has ruled that an organisation can be liable for harm done to a worker by someone who is not their employee but who is carrying out activities as an integral part of the organisation’s business and for its benefit, where the risk of the wrongdoing (for example personal injury, discrimination or harassment) results from that organisation’s decision to give responsibility to the wrongdoer.


The case arose after prison catering manager Susan Cox was seriously injured when a prisoner working in the kitchen dropped a 25kg bag of rice on her back, causing severe spinal injuries. The Ministry of Justice was liable, ruled the Supreme Court, even though the prisoner was not an employee, because he was carrying out kitchen work after being selected for training and was being supervised by prison staff. He was placed in a position that enabled him to carry out the work, and he was the MoJ’s responsibility. The POA welcomed the decision, saying “This is a significant day for prison workers across the UK – they are now legally protected when working alongside prisoners. We are delighted that this loophole has been removed from the law, and that the Ministry of Justice can no longer shirk responsibility for the injuries that happen in their prisons.”


The case also has wider significance because increasingly, there are many situations in modern workplaces where individuals who commit wrongs such as engaging in violent behaviour towards employees, belong to an organisation’s workforce without having any contract of employment with it, such as volunteers, interns, agency workers, sub-contracting staff and employees of external organisations such as facilities management companies. This case suggests that the organisation with overall responsibility for the workplace, and for directing what goes on there, is likely to be liable for acts of bullying, intimidation, physical violence or harassment, whether or not there is a contract between that organisation and the perpetrator(s).