Supreme Court revisits scope of vicarious liability in two key cases

The Supreme Court has given two more important rulings on vicarious liability. The first looks at whether the relationship between a GP and Barclays Bank was “akin to employment” when he was engaged to conduct medical examinations for their staff. The second concerns whether an employee of Morrisons, who committed deliberate breaches of data protection legislation, was acting “in the course of employment”. In both cases, the decision of the Court of Appeal finding the employer vicariously liable has been overturned.

Like the two cases heard by the Supreme Court four years ago (Cox and Mohamud) between them the latest pair of cases address both key tests that need to be met before an employer can be held liable for the wrongful acts of an individual, when it was not itself to blame:

• Firstly, was that individual either an employee or in a relationship “akin to employment”?
• Secondly, was the wrongful act done in the course of employment?

The Barclays case turned on the first question.  The Supreme Court said that because the GP it had engaged to conduct medical examinations was in business on his own account with a portfolio of patients and clients, it was clear that he was not in a relationship akin to employment with the Bank. It acknowledged that in some cases, where non-employee workers are engaged to do work for a particular organisation, the issue might not be as clear-cut. But in this case, there was no doubt that the doctor was genuinely self-employed. The Bank could not therefore be held vicariously liable for the GP's sexual assaults on female job applicants whom it had sent to him for medical examinations.

In the Morrisons case, the first test was clearly satisfied, because the wrongful acts were done by an employee (Andrew Skelton). However, could deliberately posting personal data about 100,000 employees online, in clear breach of Morrison’s data protection policies, be regarded as done in the course of employment? Disagreeing with the Court of Appeal, the Supreme Court said this:

“It is abundantly clear that Skelton was not engaged in furthering his employer’s business when he committed the wrongdoing in question. On the contrary, he was pursuing a personal vendetta, seeking vengeance for the disciplinary proceedings some months earlier.”

Putting both cases together, they are clearly helpful to employers and their insurers in setting limits to the scope of vicarious liability. They can be contrasted with the Supreme Court's earlier decisions in Cox and Mohamud which, at least at the time, were regarded as expanding its scope.  However both pairs of cases were applying the same legal principles. Perhaps the reality is that the “crooked timber of humanity” generates such a wide range of wrongdoing that it is sometimes hard categorise in an employment context.

For more information about the data protection implications of the Morrisons case please see our separate posting here.