The Supreme Court has now delivered its judgements on two important cases involving the concept of vicarious liability. In both it has upheld the appeals holding that the employer was not vicariously liable.

The first case is WM Morrison Supermarkets plc v Various Claimants.  The case concerned a data breach by a disgruntled employee of payroll data relating to some of the workforce.  Despite immediate steps being taken by the employer to protect the employees, and the individual being found liable, some of the affected employees brought proceedings against the employer on the basis that it was vicariously liable for the individual’s acts.  Both the High Court and the Court of Appeal found in favour of the claimants. However, the Supreme Court unanimously allowed the employers appeal.

In making its decision, the Supreme Court concluded that the judge and the Court of Appeal misunderstood the principles governing vicarious liability in a number of respects. It also expressed the view that the decision in Mohamud v WM Morrison Supermarkets plc was not intended to change the law of vicarious liability but rather to follow existing precedents.  The Court therefore held that:

  • The online disclosure of the data was not part of the individual’s “field of activities” as it was not an act which he was authorised to do.
  • Secondly, the Court of Appeal had placed great importance in factors in Various Claimants v Catholic Child Welfare Society (the Christian brothers case) being satisfied. However these factors were relevant to the point where, if the wrongdoer was not an employee the relationship between wrongdoer and defendant was sufficiently akin to employment for vicarious liability to exist.
  • A temporal or causal connection alone does not mean that there is a close connection between the wrongdoing and the employment.
  • The employee’s motive is relevant. The courts below had relied on a statement in the Mohamud case, but the Supreme Court pointed out that It is relevant whether the individual is acting for purely personal reasons and not on the employer’s business.

As a result the court held that the wrongful disclosure of the data was not so closely connected with the task that the employee was authorised to do to mean that it could properly be regarded as made by the individual while acting in the ordinary course of employment. The fact that the employment gives the individual the opportunity to commit the wrongful act is not sufficient to warrant imposition of vicarious liability.  In addition in this case the employee was acting in pursuing a personal vendetta and was not engaged in furthering the employer’s business and so could be seen to be acting on a “frolic of his own”

The Supreme Court also considered the specific issue in this case as to whether the Data Protection Act 2018 excluded the imposition of vicarious liability for either statutory or common law wrongs. For further information on this please click here

The second case involved the case of Barclays Bank plc v Various Claimants.  This case looked at the relationship between the two parties which makes it appropriate for vicarious liability to apply.  Whilst traditionally the cases involved a strict employer/employee relationship, the law of vicarious liability has developed to include where the relationship is not only one of employment but also one “akin to employment”.  In this case the court was considering whether the bank could be held liable for the actions of a self-employed doctor in conducting medical examinations on job applicants.

The question from various cases, including that of the Christian Brothers case, is whether the wrongdoer is carrying on business on his own account or whether he is in a relationship akin to employment with the defendant.   In that case the court had listed a number of policy reasons which usually made it fair to impose vicarious liability on an employer for the torts committed by the employee, for example that the employer is more likely to have the means to compensate the victim and the tort will have been committed as a result of activity being undertaken by the employee on behalf of the employer.   Although employment law does now recognise two different types of worker – both those under a contract of employment and those who fall within the definition of worker (limb (b) workers (Employment Rights Act 1996 section 230(3)), it would be wrong to align the concept of vicarious liability with the statutory concept of “worker” developed for a different reason.  As such the Supreme Court held that the Bank was not vicariously liable any wrong doing of the doctor in the course of the medical examinations he carried out for the bank.

These cases both will be welcome decisions for employers who may have found themselves vicariously liable to tortious acts in a wider context.

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