Courts to Consider Employer’s Vicarious Liability for Employee’s Murder

The family of a murdered employee has defeated an employer’s attempt to strike out its claim that his employer was vicariously liable for murder. 

In Vaickuviene v J Sainbury plc, R was stabbed to death by a colleague at work.  R and his attacker, M, were both employed as night shift shelf stackers.  M was a member of the British National Party and held extreme racist views about Eastern European workers coming to work in the UK.  R was Eastern European.  M frequently made racist comments and in the days before his death staff heard him threaten to kill R.  On 13 April 2009, M racially abused R and R complained to his team leader.  M knew of the complaint.  No action had been taken in relation to R’s complaint when, two days later, M took exception to R sitting at the same table as him.  This led to a confrontation and to M stabbing R to death with a knife which he obtained from the kitchenware section of the store. 

M subsequently pleaded guilty to murder and was sentenced to life imprisonment.

R’s family claimed that his employer was vicariously liable for M’s harassment of R contrary to the Protection from Harassment Act 1997 (“the PHA”).  The employer sought to have the claim struck out, arguing that there was not a sufficiently close connection between M’s actions and his employment duties for liability to arise on its part.  It argued that M was not purporting to do anything connected with his duties when the stabbing occurred and was instead involved in an unrelated and independent venture of his own which involved a personal matter.

The Outer House of the Court of Session in Scotland dismissed the strike out application and the family’s claim will now proceed to a full hearing.  This was not simply a case of events occurring at work between employees during working hours – it was capable of being construed as a case entirely connected with M’s work, his reaction to his employer’s choice of fellow employee and to R’s decision to invoke the grievance procedure.   

It remains to be seen whether the employer will be held vicariously liable for its employee’s murder. However, the case acts as a reminder of the need to take complaints of harassment seriously and to take swift action to prevent further harassment occurring.  The Court acknowledged that there are sound policy reasons for encouraging employers, through the laws on vicarious liability, to minimise or prevent harassment at work.  Employers should ensure that they have harassment policies in place which provide for complaints to be dealt with promptly, that managers are trained in their use and implement them if a complaint of harassment is made.  Whilst in a PHA case it is not a defence for an employer to show that it took all reasonable steps to prevent harassment occurring, taking prompt action may prevent the matter getting out of hand and therefore reduce the risk of a claim.