Vicarious Liability – When does it apply?
Whether employers are ordinarily vicariously liable for the acts of their employees largely depends on whether the act of the employee is closely connected with the employment. The recent UK Supreme Court ruling in WM Morrison Supermarkets v Various Claimants (2020) UKSC 12 clarifies the concept of vicarious liability in a situation where an employee goes on a ‘frolic of his own’.
Mr Andrew Skelton, a former senior auditor in the internal audit team of WM Morrison Supermarkets (“Morrisons”) was subject to disciplinary proceedings for minor misconduct and this gave rise to an irrational grudge which Mr Skelton held against Morrisons. A few months thereafter, Mr Skelton uploaded a file containing the data of 98,998 employees of Morrisons to a publicly accessible file-sharing website and sent a CD, containing the privacy data, to three different UK newspapers pretending to be a concerned member of the public who had noticed the data on the file-sharing website. However, the newspapers found this to be suspicious and one of them notified Morrisons.
Morrisons took immediate action to ensure the employee personal data was removed from the internet and duly informed the police. Mr Skelton was arrested and later sentenced to jail.
The employees whose data had been wrongfully disclosed sued Morrisons for the data breach. At first instance, the Court held that Morrisons was responsible for its breach of statutory duty, breach of confidence, as well as misuse of private information. On appeal, Morrisons was again held vicariously liable for Mr. Skelton’s conduct. The Court of Appeal held that the acts of Mr Skelton in sending out data to a third party, was within the scope of duties that he was assigned to do by Morrisons and therefore Morrisons shall be vicariously liable for Mr. Skelton’s misconduct.
On appeal to the Supreme Court, it was contended that Mr. Skelton’s disclosure of the data did not involve furthering Morrisons’ business, instead, he was acting in pursuit of his own interests. The Supreme Court accepted that where an employee goes on a ‘frolic of his own’ (citing the judgment in Dubai Aluminium  2 AC 366) the employer shall not be vicariously liable for the misconduct committed by its employee.
The Supreme Court therefore concluded that in order for Morrisons to be vicariously liable for the acts of Mr Skelton, the conduct must be so closely connected with acts which he was authorised to do that, for the purposes of the liability of his employer to third parties, his wrongful disclosure may fairly and properly be regarded as having been done by him while acting in the ordinary course of his employment. However, Mr. Skelton was not furthering his employer’s business. He was purely pursuing his personal vendetta and seeking vengeance for the disciplinary proceedings, rendering his misconduct no longer closely connected with what he was authorised to do. Morrisons appeal was therefore allowed.
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