It ain’t what you do, it’s the way that you do it

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It ain’t what you do, it’s the way that you do it

Published 15 February 2022

In this alert we look at two very different recent cases involving vicarious liability following the Supreme Court’s decisions of 2016 and 2020, both involving Morrisons supermarkets.

It is worth a quick reminder of what those two earlier cases were about and what the Supreme Court decided.

In Mohamud v Wm Morrison Supermarkets plc [2016] UKSC 11 (Mohamud) the claimant had been assaulted by a Morrisons employee who was at work at the time. The first instance court and the Court of Appeal both found for Morrisons on the basis there was no sufficiently close connection between the assault and what the employee had been employed to do. The claimant had argued that the test for vicarious liability should be couched in terms of “representative capacity” rather than the close proximity test set out in Lister v Hesley Hall Ltd [2001] UKHL 22. In the event the Supreme Court decided that the test did not need to be re-defined. Lord Toulson said that in essence the test was:

  1. what functions had been entrusted to the employee by the employer; and
  2. whether there was a sufficient connection between the employee’s wrongful conduct and position in which he was employed to make it right for the employer to be found vicariously liable.

The Supreme Court found that even though the employee’s conduct was inexcusable it was within the field of activity assigned to him. Therefore, whilst his actions were a gross abuse of his position, they were carried out in connection with the business by which he was employed.

In a later decision in Various v Wm Morrisons Supermarkets plc [2020] UKSC 12 (Various) the court sought to address what Lord Reed called “misunderstandings” regarding its decision in Mohamud. The employee in this case had worked for Morrisons as a senior auditor. He had been disciplined for a minor grievance and had a grudge which had led him to upload the personal data for almost 100,000 Morrisons’ employees to a file-sharing website. He then sent CDs of the data to three newspapers posing as a concerned member of the public who had found the data on the website. The employee was eventually sentenced to eight years in prison. It cost Morrisons over £2m to put things right.

The claim against Morrisons was brought under the Data Protection Act 1998 with vicarious liability also being claimed. The claimants were successful at first instance and in the Court of Appeal but the Supreme Court saw things differently. It was clear that the employee was not engaged in furthering his employer’s business when he committed the wrongdoing. He was on a personal vendetta against his employer and, in the circumstances, his actions were not so closely connected with what he was authorised to do by his employer that they could properly be regarded as done by him in the course of his employment.

Two recent cases illustrate the courts’ approach to vicarious liability in the light of the second Morrison decision.

Chell v Tarmac Cement and Lime Ltd [2022] EWCA Civ 7

Mr Chell was employed by Roltec Engineering Ltd which in turn had been contracted by Tarmac Cement and Lime Ltd (Tarmac) to provide services to it. One of Tarmac’s employees went into the workshop in which the claimant was working and, as the claimant bent down to get a piece of cut steel, struck two pellet targets with a hammer near to the claimant’s ear causing noise induced hearing loss and tinnitus. Whilst the hammer was supplied by Tarmac, the pellets had been brought on site by the employee.

The claimant alleged that Tarmac was vicariously liable for the actions of its employee and liable in negligence. The claim was dismissed in the county court. The judge there considered a number of authorities including the two referred to above. His finding was that, for various reasons, the actions by Tarmac’s employee were not within the scope of the activities for which he was employed.

On appeal, the Court of Appeal found that there was no sufficiently close connection between the act causing the injury and what the employee’s duties were. The real cause of the claimant’s injuries were the pellet targets which were not equipment belonging to Tarmac. The employee was not authorised to do what he did and his act was not an unlawful method of doing something authorised by his employer: the pellet targets were not work equipment and hitting them with a hammer was not part of his duties.

Ali v Luton BC [2022] EWHC 132 (QB)

The claimant’s marriage had ended in divorce. The social services were involved because of the divorced couple’s two children and data relating to the claimant was kept on a case management system by Luton BC (the council). It was agreed between the parties that an employee of the council, who was in a relationship with the claimant’s ex-husband, had breached the claimant’s rights by accessing and disclosing to him information about the claimant and their children which was stored on the council’s IT system.

In this case, as was also true of the employee in Various above, the judge held that the council’s employee was in no way engaged in furthering the business of her employer. Although the employee had the opportunity to access and process data relating to the claimant, this was not part of the work she was engaged by the council to do. Indeed, as the judge pointed out, if she had disclosed her connection with the claimant’s husband her access to the records would have been restricted.

In effect the employee was engaged in pursuing her own agenda, a “frolic of her own”, just as much as the defendant’s employee in Chell, to which the judge in this case referred. Applying the test laid down in Various, in the light of the circumstances of this case and the relevant case law, the wrongful conduct was:

“…not so closely connected with acts which the employee was authorised to do that, for the purposes of the defendant’s liability to third parties, it can fairly and properly be regarded as done by her while acting in the ordinary course of her employment.”

The fact that the Supreme Court in Various felt compelled to clarify Lord Toulson’s intentions in his judgment in Mohamud suggests that there is still confusion around vicarious liability.

The distinction between Mohamud one the one hand and Various, Chell and Ali decisions on the other is that in Mohamud the employee was still acting in the course of his employment and what he did remained sufficiently connected with it to make the employer liable. As Lord Toulson said, what the employee did was a “seamless episode”. The employee did not “metaphorically take off his uniform” the moment he stepped from behind the counter. In Various the employee was actively seeking to damage the interests of his employer which would not fall into being a “close connection” (à la Hesley Hall) to his normal duties by any definition. In Chell the employee was engaging in something which had nothing to do with his duties and using something (the pellets) which had not been supplied by his employer. In Ali the employee’s use of confidential data held by her employer for entirely unauthorised personal reasons meant that her actions were not closely connected to her specified duties.

These cases are, needless to say, highly fact sensitive and demand a full analysis of all the available evidence.

Authors

Mark Bailey

Mark Bailey

Bristol

+44 (0) 117 918 2062

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