Acting to stop harm: the FCA and Appointed Representatives
The Outer House of the Court of Session in Scotland last week, in the case of Vaickuviene and others v J Sainsbury plc  CSOH 69, decided to allow a claim against Sainsbury’s, brought by the family of one of their employees murdered by a colleague, to proceed to a full hearing. The family is basing their claim on the UK-wide Protection from Harassment Act 1997 (PHA 1997) and so has implications that could stretch across both sides of the border.
Roman Romasov, from Eastern Europe, was a night shelf-stacker at a Sainsbury’s branch in Aberdeen. He worked there with one Robert McCulloch, a British National Party (BNP) member who had extreme xenophobia towards immigrants from the eastern part of the EU especially. At work this bad blood was directed, it seems, at Mr Romasov. On 15 April 2009 McCulloch stabbed Mr Romasov to death at their place of work. McCulloch was subsequently convicted of murder.
Evidence was heard that on 13 April 2009, two days before the murder, other staff had heard McCulloch racially abusing Mr Romasov. Clearly distressed, Mr Romasov wrote a letter to his line manager complaining that racist remarks had been made towards him by McCulloch. The line manager, however, did nothing straight away about the letter, later claiming that he was too busy to do so, thereby missing the chance to summon McCulloch to a disciplinary meeting, where he could (indeed likely would) have been dismissed, or possibly suspended, or either party moved to a different shift.
McCulloch became aware that Mr Romanov had made a complaint about him. At about 1am on 15 April, during a break, McCulloch became aggressive when he found Mr Romasov sitting at the same staff table as he was. Punches were thrown in the toilets shortly thereafter. McCulloch then went to the kitchenware section of the store, took a knife, and stabbed Mr Romasov in one of the supermarket aisles. Mr Romasov later died of his injuries.
Mr Romasov’s family, following McCulloch’s conviction, brought a civil claim saying that Sainsbury’s should be held responsible for McCulloch’s actions. In this hearing, Sainsbury’s sought to have the claim dismissed before trial, arguing that there was not any sufficiently close connection between McCulloch’s act and his employment to render them responsible. To support this, Sainsbury’s relied on a 2010 case, Wilson v Exel UK Ltd t/a Exel  SLT 671, in which a manager assaulted a colleague, but was not at the time the assault happened doing any managerial duties, nor purporting to do so.
The claim against Exel failed because the assault was held to be the culmination of a personal dispute between the parties and nothing to do with the employment. Sainsbury’s said that the situation in this claim was very similar to Wilson v. Exel – this was not a matter sufficiently connected to McCulloch’s employment to mean that the employer should be held responsible.
The family, for their part, relied on the House of Lords’ decision in the English case of Majrowski v Guy's & St Thomas's NHS Trust (2007) 1 AC 224, where it was held that an employer can be vicariously liable under PHA 1997 for harassment committed by an employee in the course of employment.
The crucial point for the court to consider was whether the murder was closely enough connected to the employment so as to possibly render Sainsbury’s liable for the death of Mr Romasov.
The court refused Sainsbury’s application to have the claim struck out - meaning that it will now proceed to a full hearing. Of particular note is that the court was struck by the fact that the chain of events that led to the murder began with verbal harassment, of which the supermarket was fully aware, and culminated in the tragic events of the early morning of 15 April 2009. The court further commented on the fact that Mr Romasov’s line manager did nothing about the complaint and considered that the final act of McCulloch could (and it is for the trial court to determine this finally) be regarded as the culmination of McCulloch’s reaction to his fellow employee and the way in which the employer chose to respond to internal complaints, thus sufficiently closely related to his employment to allow liability to fall on Sainsbury’s.
The fact that the court didn’t accede to Sainsbury’s request to throw out the claim brought by the family shows that, for all employers, dealing promptly with serious matters like this is vitally important. One simply cannot know how harassment, bad enough even in its “mildest forms”, may end up. The fact that Sainsbury’s failed to act on the earlier incidents of harassment played a huge part in the court allowing this claim to proceed to full trial. If the claim succeeds at the final trial, it will represent a huge development in the law of vicarious liability, in other words when an employer can be held responsible for the actions of its employees.
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