Vaickuviene and others v J Sainsbury plc  CSOH 69
Mr Romasov and Mr McCulloch were both employed as night-shift shelf stackers at a Sainsbury's supermarket in Aberdeen. Mr McCulloch was a member of the British National Party and known to hold extreme and racist views about Eastern European workers coming to the UK.
On 13 April 2009, after Mr McCulloch had racially abused him and told him to “return to his own country”, Mr Romasov gave a letter of complaint to his team leader. No action was taken by Sainsbury’s and both individuals continued to be allocated to the same shifts. On 15 April 2009, Mr McCulloch took aggressive exception to Mr Romasov sitting at the same table and there was a confrontation between them.
Mr McCulloch then took a knife from the kitchenware section and stabbed Mr Romasov. Mr Romasov died as a result. Mr McCulloch pleaded guilty to murder and was sentenced to life imprisonment.
Mr Romasov's family claimed that Sainsbury's was vicariously liable for Mr McCulloch's harassment of Mr Romasov contrary to section 8 of the Protection from Harassment Act 1997.
Sainsbury's applied to strike out the claim, arguing that the family could not establish a sufficiently close connection between Mr McCulloch's actions and his employment duties for liability to arise.
The Outer House of the Court of Session dismissed Sainsbury's application to strike out the claim and held that the question of vicarious liability should be determined at a full hearing.
In reaching its decision the court made some general observations about the development of vicarious liability. The authorities appeared to acknowledge that the principles which have been developed are not entirely consistent; cases are very fact dependent; and that policy considerations have been and remain a major influence. The court suggested that the development of vicarious liability is an ongoing process which may result in considerable departure from some of the earlier cases, as the law continues to reflect changing ideas about responsibilities as between employer and employee.
The Protection from Harassment Act has become relatively well established as a basis for employees to make claims against employers on the basis of vicarious liability. However, a clear connection to employment must be established in order for any claim to succeed.
In this case, particular note was taken by the court of Sainsbury’s knowledge of the alleged harassment and that they took no steps to suspend Mr McCulloch after Mr Romasov’s complaing had been made. Further, both employees continued to remain on the same shifts.
Although the case has been remitted for consideration at a full hearing, these seem to be clear pointers that the Court of Session believes the imposition of vicarious liability is appropriate in these circumstances.