A potential diner visits your restaurant and asks for a drink
that you do not sell.
Your server replies using obscenities that you do not stock it.
The diner complains about being sworn at. The server angrily
directs him off the premises using racist and expletive language.
The diner is shocked and returns to his car. Your server follows
him, opening his passenger car door to yell at him further. The
diner gets out of his car to close the door and your server punches
and kicks him to the ground.
The next day your restaurant receives a claim for personal
injury from the diner. The question that undoubtedly springs to
your mind is "surely as the server's employer, I can't
be responsible for this?" Well, actually you might be.
The facts above echo a recent case involving a petrol station
owned by Morrison Supermarkets. There, a petrol kiosk worker
attacked a potential customer in very similar circumstances. After
a long legal battle, the case progressed all the way to the Supreme
Court and Morrisons were held liable.
How can it be right that the employer is held liable for such
Because the individual was responsible for serving customers and
ensuring that the premises ran in good order, the Supreme Court
felt that those duties were sufficiently close to the acts that
subsequently transpired. The petrol kiosk worker was, in his own
way, carrying out his duties even though the manner in which they
were being carried out was not approved by his employer.
Whilst there is some legal theory behind the rationale that the
individual's employer should be liable (a concept known as
"vicarious liability"), it is also driven by public
policy considerations as it is presumably felt that an injured
person should have recourse against the employer, who is likely to
have deeper pockets than the individual who actually carried out
What can I do to minimise the risk of my business being liable
for such acts?
There are a number of practical steps that you could take as an
Educate your employees about what standards of behaviour are
expected of them and reinforce this message with regular training
and a well-publicised policy on acceptable behaviour at work. To
limit your exposure in discrimination claims, an equal
opportunities and anti-bullying and harassment policy is also
essential. All this should help employees understand the
expectations upon them and hopefully they will then act
Coach your managers and supervisors to recognise inappropriate
behaviour and ensure that they intervene at an early stage to stop
situations from escalating. Whilst this might end up being a
damage-limitation exercise, it should at least minimise any harm
Consider whether to pursue your own claim against the employee,
probably for breach of their contractual terms of employment.
However, commercially speaking, you will want to balance this with
the time and cost of such legal action and also the likelihood of
whether your employee has funds to pay you any compensation that is
awarded if you are successful in your claim.
Check whether you have a clause in your contracts of employment
allowing you to make a deduction from the employee's wages for
losses incurred as a result of their negligence and/or breach of
your company rules. If you do not already have such a right, you
might want to introduce one.
As a deterrent to others, you will also want to send a strong
message that such behaviour will not be tolerated. In the above
scenario, the actions are very likely to be gross misconduct,
meaning you can dismiss without notice. However, do remember to
follow the ACAS Code of Practice on Disciplinary and Grievance
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Goodman Derrick's employment team will be hosting a workshop on HR horrors and how to deal with them. This practical session, on Wednesday 10 May 2017, will use case studies to deal with some of the tricky HR situations often faced by employers.
In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
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