07/04/2020
Under the doctrine of vicarious liability, an employer can be held liable for the wrongdoing of an employee if there is a connection between the employment and the wrongdoer’s act or default and it is just for the employer to be held liable. Over the past two decades the circumstances in which the doctrine can be applied has steadily expanded.
In Lister v Hesley Hall Ltd [2001] UKHL 22 the House of Lords held that a boarding school was vicariously liable for the actions of a warden who had sexually assaulted pupils. Although these were criminal acts the Court found there was a close connection between the wrongdoing and the warden’s employment to establish liability.
Two years later in Mattis v Pollock (t/as Flamingo’s Nightclub) [2003] EWCA Civ 887 the Court of Appeal held that a night club owner was variously liable for the actions of one of his bouncers, Cranston. Following an altercation with customers in the nightclub, Cranston left to retrieve a knife from home and then returned stabbing one of them. Cranston was employed specifically to keep order and was encouraged to perform his duties aggressively. The Court found the stabbing was a culmination of the earlier incident.
In the case of Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 the victim was physically assaulted in an unprovoked attack at the defendant’s petrol station by one of its forecourt attendants. In finding the supermarket vicariously liable the Supreme Court clarified the ‘close connection’ test stating the court has to consider two matters:
1. What functions or “field of activities” have been entrusted by the employer to the employee, or, in everyday language, what was the nature of his job;
2. Whether there was sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice.
Two decision handed down by the Supreme Court on 1 April 2020 have revisited the application of the doctrine of vicarious liability.
In the first case, WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12 the judgment begins by saying the matter was an
“opportunity to address the misunderstandings which have arisen since its decision in the case of Mohamud “
The case concerned the actions of Skelton, a senior internal auditor employed by the supermarket, who downloaded payroll data of 100,000 staff from his laptop to a USB that he had been asked to transmit to the accountant firm KPMG. He then leaked the data online and to three newspapers. Skelton, who bore a grudge following disciplinary proceedings, was convicted of offences under the Data Protection Act 1998 and the Computer Misuse Act 1990.
The Supreme Court, overturning the Court of Appeal’s ruling that Morrisons was liable, found that the disclosure was not part of Skelton’s “field of activities” stating:
“…..he was pursuing a personal vendetta…. Skelton’s wrongful conduct was not so closely connected with acts which he was authorised to do that…. it can fairly and properly be regarded as done by him while acting in the ordinary course of his employment.”
In the second case Barclays Bank v Various Claimants [2020] UKSC 13 the Supreme Court overturned the Court of Appeal’s ruling that Barclays was liable for the sexual assaults committed by Dr Bates, an independent contractor engaged by the Bank to undertake medical examinations of prospective employees.
The Court confirmed the question to be addressed is whether the wrongdoer is
“carrying on business on his own account or whether he is in a relationship akin to employment”.
If it is clear the wrongdoer is working on his own account then the defendant is not vicariously liable. However if it is not clear then it will be necessary to consider whether the relationship “is sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability”. On the facts of this case it was found that Dr Bates was an independent contractor.
While the test in Mohamud for vicarious liability remains intact the Supreme Court has made clear that it should not be interpreted too widely.
Fisher Scoggins Waters are a London based law firm who specialise in construction, manufacturing and engineering matters. If you have recently had a health and safety incident occur in your workplace and require legal advice, please phone us on 0207 993 6960.