On 15 April 2009 Robert McCulloch, a British National Party (BNP) member who openly held “extreme and racist views about eastern Europeans coming to the UK”, fatally stabbed Mr Romasov from Lithuania at their common place of work – a Sainsbury’s branch in Aberdeen. McCulloch was subsequently convicted of murder.
The bad news for Sainsbury’s does not stop there. Last month, in April 2012, the Scottish courts refused to dismiss a claim from Mr Romasov’s family that Sainsbury’s should be held financially liable to the tune of £500,000 for the homicide.
Mr Romasov’s family has sued Sainsbury’s in the Scottish civil courts, claiming the retailer should be held responsible for his death.
The family argue that Sainsbury’s inaction over a grievance Mr Romasov sent to his line manager in relation to McCulloch’s racial abuse two days before the murder, may have had fatal consequences.
Instead of summoning McCulloch to a disciplinary hearing, where McCulloch could have been fired or suspended, or perhaps moved to a different shift, nothing was done. Shortly after midnight on 15 April three years ago, McCulloch became aggressive when Mr Romasov sat at the same staff table and subsequently stabbed Mr Romasov in an aisle.
Sainsbury’s sought to have the family’s claim dismissed by arguing that there was not sufficiently close connection between McCulloch’s act and his employment to render Sainsbury’s responsible.
Essentially, Sainsbury’s argued that this was a personal dispute, not a matter sufficiently connected to McCulloch’s employment to merit an employer’s liability trial.
In the dismissal hearing, the family, for their part, relied on a House of Lords’ decision that an employer can be ‘vicariously’ liable under Protection from Harassment Act 1997 (which applies in England and Wales as well as in Scotland) for harassment committed by an employee in the course of employment.
The family maintained the harassment meted out by McCulloch was abuse that Sainsbury’s could have stopped and was part and parcel of a chain of events that culminated in his murder.
Although it has now been decided that the case should proceed, a full trial is still several more months away.
The main point for the court to decide will be whether the murder was so closely connected to McCulloch’s employment to render Sainsbury’s vicariously liable.
We already know that the fact Sainsbury’s failed to act on the earlier incidents of harassment two days prior to the death played a huge part in the court allowing the claim to proceed.
It is therefore reasonable to expect the actual trial could be deeply embarrassing for Sainsbury’s and could seriously damage its reputation as a responsible employer.
Sainsbury’s are in a difficult position. If they settle the claim now it may be regarded as a tacit admission of guilt, implying that they accept that they didn’t look after their employee properly and, through inaction, allowed a racist to kill him.
On the other hand, if they go to trial, then they will suffer the indignity of the family’s lawyers alleging, in an open forum, that Sainsbury’s allows racial harassment to go unpunished and their ethnic minority employees to be exposed to violent far-right extremists.
Both options must be deeply unpalatable for a trusted household name keen to promote itself as an equal-opportunities employer and community champion.
Only time will tell on this sad tale for the Romasov family and important case for Sainsbury’s.
What we can say at this stage is that this case will continue to be watched closely by other employers, in the retail sector and beyond, in Scotland and elsewhere.
If the full trial does go ahead, the judgment will set a significant precedent other employers will need to be mindful of and it will affect their response to harassment complaints in future, accordingly.
Martin Pratt is an employment lawyer with Kingsley Napley