Supreme Court limits vicarious liability

What is vicarious liability?

It is well established in UK law that employers can be held liable for the acts of their employees, but there is a limit to an employer’s liability for the actions of its employees. The wrong must have been committed in the course of their employment. The actions of the employee must be so closely connected with the employment that it would be considered fair and just to hold the employer vicariously liable for those actions. But this test is not always as straightforward as it may seem.

The Morrisons case

In the case of Morrisons v Various Claimants, the Supreme Court upheld that an employer is not vicariously liable when an employee commits a tort as a personal vendetta.

The case involved a disgruntled employee, an internal auditor who uploaded payroll data of more than 100,000 staff onto the internet and sent it anonymously to UK newspapers - rather than to Morrisons’ auditors. This, created a data breach for the supermarket. Ahead of the Supreme Court’s involvement, the claimants had succeeded in the High Court and the Court of Appeal for breach of statutory duty under the Data Protection Act 1998, misuse of private information and breach of confidence.

In the judgement handed down on 1 April 2020, the Supreme Court allowed Morrisons’ appeal, finding that the online disclosure of the data was not part of the employee’s ‘field of activities’, as it was not an act he was authorised to do. The Supreme Court, upon extensive review of the law on vicarious liability, held that Morrisons was not vicariously liable for the employee’s act.

What does it mean for employers?

This will be a welcome decision for employers as it further limits the circumstances in which an employer may find themselves vicariously liable for the actions of their employees. Having said that, this case is largely restricted to its facts. The Supreme Court found Morrisons’ argument that the Data Protection Act 1998 excludes imposition of vicarious liability for either statutory or common law wrongs ‘unpersuasive’. The threat of significant liability for data breaches, while reduced, still remains.

To find out more about anything covered in this article, or to discuss another employment query, please contact a member of Thrings’ Employment and Immigration team.

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