Can an employer be held responsible for its employees’ actions?

boss-staff-300x180The recent case of Vaickuviene and others v J Sainsbury Plc shows that employers must be aware of how their employees are behaving and if necessary take strong action to safeguard employee safety.

The Protection from Harassment Act 1997 prohibits the pursuit of a “course of conduct which amounts to harassment of another”. A course of conduct must involve conduct on at least two occasions and harassment is defined as causing a person alarm or distress.

A Mr Romasov and a Mr McCulloch both worked as night-shift shelf stackers at a Sainsbury’s supermarket. Mr McCulloch was a member of the British National Party and was known to hold racist views about Eastern European workers coming to the UK.

Many staff had heard Mr McCulloch threaten to kill Mr Romasov (who was from Eastern Europe). After one particular incident, Mr Romasov gave a letter of complaint to his team leader.

Making racist comments was a disciplinary offence under Sainsbury’s policies, and could have resulted in disciplinary action, including possible dismissal. The night-shift manager took no action but Mr McCulloch knew of the complaint and that it could lead to his dismissal.

Two days later there was a confrontation between them and Mr McCulloch stabbed Mr Romasov who died.

Mr Romasov’s family claimed that Sainsbury’s was “vicariously liable” for Mr McCulloch’s harassment of Mr Romasov. Sainsbury’s applied to strike out the claim, arguing that his family could not establish a sufficiently close connection between Mr McCulloch’s actions and his employment duties for liability to arise. However, the Scottish Court of Session dismissed Sainsbury’s application, holding that the question of vicarious liability should be determined at a full hearing which has yet to take place.

In this case, the employer had a disciplinary procedure but it was not followed.  If you are an employer, do you have policies in place to deal with such incidents and if so are you ensuring that they are followed.  If you think this may be a concern for you, talk to your Barnes Roffe LLP contact.

(As a footnote, Mr McCulloch was subsequently convicted of Mr Romasov’s murder)

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