​If an employee assaults a customer can an employer be liable?

Yes, an employer will be vicariously liable if there is a “sufficient connection” between the assault and the employee’s job.

A case(*), which recently hit the headlines, involved the supermarket chain Morrisons after one of its employees launched an unprovoked attack. A customer had popped into a Morrisons petrol station and asked at the kiosk whether it was possible to print off some documents from a USB stick. The Morrisons employee, whose job involved attending to customers and responding to their enquiries, said "we don't do such s**t". When the customer protested against the use of foul language the employee ordered the customer to leave and keep away, using racist and threatening language. The employee then followed the customer out to his car, punched him to the ground and proceeded to punch and kick him on the floor.

Both the trial judge and the Court of Appeal could not find a “sufficient connection”, however, when the case went all the way to the Supreme Court it was found. In ordering the customer to leave and keep away the employee was purporting to go about their employer’s business and by coming out from behind the kiosk and following the customer to his car the employee had not metaphorically taken off his uniform to deal with something which had become personal.

The test is whether the acts are so closely connected with the employment that it would be fair and just to hold the employers vicariously liable. The point that on the same facts the trial judge and the Court of appeal could not find “sufficient connection” when the Supreme Court did highlights the inherent imprecision in the test when dealing with the infinite range of circumstances where liability may arise. 

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(*Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11)