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Vicarious liability of employers – could employers be vicariously liable for murder?

22 May 2012 | David Widdowson

Following a claim from the family of a murdered employee, a court has thrown out the ex-employer’s application for the claim to be struck out and it will now proceed to a full hearing.

Background

The facts of the case, as claimed by the pursuers/(claimants), are that an employee of Sainsbury’s, Mr Romasov, who was of eastern European origin, was subject to racist abuse, including death threats, from a fellow employee, Mr McCulloch. This abuse occurred in front of a number of other employees. Although Mr Romasov complained to his team leader regarding the racist abuse, no action was taken. However, Mr McCulloch learned that a complaint had been made and he was aware that under Sainsbury’s employment policies, such a complaint could lead to his dismissal.

A couple of days later, following a confrontation, Mr McCulloch took a knife from the Kitchenware section of the store and stabbed Mr Romasov, as a result of which he died. Following Mr McCulloch’s criminal conviction for murder, Mr Romasov’s family brought a claim against Sainsbury’s alleging that they were vicariously liable for Mr McCulloch’s harassment of Mr Romasov under the Protection from Harassment Act 1997.

Sainsbury’s applied to have the claim struck out on the basis that the current state of the law was such that that the claimant could not establish a sufficiently close connection between Mr McCulloch’s actions and the duties of his employment and so Sainsbury’s could not be liable. The court refused to strike out the claim and commented on the fact that, as the harassment began with verbal harassment in front of other employees while Mr Romasov was working, and of which Sainsbury’s were aware through the complaint made to his line manager, and that it culminated in Mr Romasov’s murder, it could be in principle be argued that this established a sufficiently close connection with Mr Romasov’s employment to make Sainsbury’s vicariously liable.

Commentary

Sainsbury’s failure to act following the racist abuse of Mr Romasov, and Mr Romasov’s letter of complaint, helped convince the court to let this claim proceed to a full hearing. It remains to be seen whether, on the facts, the harassment that took place was something for which Sainsbury’s could be liable through its responsibility for the acts of its employee. We will publish an update following the outcome of the full trial. In the meantime, however, employers should note that simply because the actions of an employee were so extreme in nature and also not directly related to the workplace, does not mean that they have no responsibility for those actions. Where complaints of this nature come to your attention it is very important that they are addressed quickly and substantively to deal with them.

Resources

Vaickuviene v J Sainsbury plc

For further information or to discuss the issues raised, please contact David Widdowson or Stephen Wright on +44 (0)20 3051 5711.

Disclaimer

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The author

David Widdowson
Partner
Employment Law
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D: +44 (0) 207 036 8388
T: +44 (0) 203 051 5711
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