The Inner House of the Court of Sessions, in the recent case of Jalena Vaickuviene & Other v J Sainsbury plc [2013] CSIH 67, has held that Sainsbury's was not vicariously liable for a course of
The Inner House of the Court of Sessions, in the recent case of Jalena Vaickuviene & Other v J Sainsbury plc [2013] CSIH 67, has held that Sainsbury's was not vicariously liable for a course of harassment which culminated in the death of one of their employees.
Mr Romasov and Mr McCulloch were employed by Sainsbury's as shelf stackers in an Aberdeen store. Mr McCulloch was a member of the British National Party ("BNP") and it was known that he held extreme xenophobic views about Eastern European workers in particular. On 15 April 2009, following an altercation, he stabbed Mr Romasov to death at the store in which they worked and was subsequently convicted of murder. Just days before the fatal stabbing another member of staff overheard Mr McCulloch racially abuse and threaten to kill Mr Romasov. Mr Romasov raised a complaint about Mr McCulloch's threat but it was not dealt with by management prior to the stabbing, although Mr McCulloch was informed of the complaint.
Mr Romasov's family brought a claim that Sainsbury's were responsible (i.e. vicariously liable) for Mr McCulloch's actions under the Protection from Harassment Act 1997 ("PHA"). In doing so they relied on a previous House of Lords decision which held that an employer can be vicariously liable under the PHA for harassment committed by an employee in the course of employment. They argued that the circumstances of the harassment, which were known to the employer due to the complaint, put Mr Romasov at increased risk in his employment and that situations in which an employer could be vicariously liable for an employee's wrongdoing should be viewed widely.
The Court confirmed that an employer may be vicariously liable for harassment carried out by an employee in the course of employment. However, it stated that a key question was whether the wrongdoing perpetrated by the employee was "so closely connected with his employment" that it would be "fair and just" to find the employer liable. For example, if an employee in a supervisory role harasses a junior employee to enforce discipline. The employer would not be liable in circumstances where the wrongful act was a "frolic of the employee's own devising and execution and therefore unconnected with what he was employed to do".
The Court decided that looking at the matter in as broad a context as possible there was no connection between the harassment and/or murder of Mr Romasov (i.e. the wrongdoing) on the one hand and the stacking of shelves (i.e. his employment duties) on the other. Rather, Mr McCulloch's employment simply provided him with the opportunity to carry out his own personal campaign of harassment with tragic consequences.
It was noted that while Mr McCulloch's known propensity for violence towards immigrant workers was not relevant to the issue of vicarious liability, it may have been relevant had it been considering whether Sainsbury's had direct liability based on the duty of an employer to take reasonable care to employ competent staff and to supervise their activities on their premises.
The facts of this case are extreme but it serves as a reminder to employers to deal with grievances promptly and that claims of vicarious liability for harassment may be brought up to 6 years after the event under the PHA, not just within the 3 month time limit set out by the Equality Act.
Mr Romasov and Mr McCulloch were employed by Sainsbury's as shelf stackers in an Aberdeen store. Mr McCulloch was a member of the British National Party ("BNP") and it was known that he held extreme xenophobic views about Eastern European workers in particular. On 15 April 2009, following an altercation, he stabbed Mr Romasov to death at the store in which they worked and was subsequently convicted of murder. Just days before the fatal stabbing another member of staff overheard Mr McCulloch racially abuse and threaten to kill Mr Romasov. Mr Romasov raised a complaint about Mr McCulloch's threat but it was not dealt with by management prior to the stabbing, although Mr McCulloch was informed of the complaint.
Mr Romasov's family brought a claim that Sainsbury's were responsible (i.e. vicariously liable) for Mr McCulloch's actions under the Protection from Harassment Act 1997 ("PHA"). In doing so they relied on a previous House of Lords decision which held that an employer can be vicariously liable under the PHA for harassment committed by an employee in the course of employment. They argued that the circumstances of the harassment, which were known to the employer due to the complaint, put Mr Romasov at increased risk in his employment and that situations in which an employer could be vicariously liable for an employee's wrongdoing should be viewed widely.
The Court confirmed that an employer may be vicariously liable for harassment carried out by an employee in the course of employment. However, it stated that a key question was whether the wrongdoing perpetrated by the employee was "so closely connected with his employment" that it would be "fair and just" to find the employer liable. For example, if an employee in a supervisory role harasses a junior employee to enforce discipline. The employer would not be liable in circumstances where the wrongful act was a "frolic of the employee's own devising and execution and therefore unconnected with what he was employed to do".
The Court decided that looking at the matter in as broad a context as possible there was no connection between the harassment and/or murder of Mr Romasov (i.e. the wrongdoing) on the one hand and the stacking of shelves (i.e. his employment duties) on the other. Rather, Mr McCulloch's employment simply provided him with the opportunity to carry out his own personal campaign of harassment with tragic consequences.
It was noted that while Mr McCulloch's known propensity for violence towards immigrant workers was not relevant to the issue of vicarious liability, it may have been relevant had it been considering whether Sainsbury's had direct liability based on the duty of an employer to take reasonable care to employ competent staff and to supervise their activities on their premises.
The facts of this case are extreme but it serves as a reminder to employers to deal with grievances promptly and that claims of vicarious liability for harassment may be brought up to 6 years after the event under the PHA, not just within the 3 month time limit set out by the Equality Act.