Vicarious Liability

Breaches of Data Protection and Vicarious Liability

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In various claimants v Wm Morrisons Supermarkets plc it was held that an employer could be held vicariously liable for the criminal actions of one of its employees in the breach of data protection.
In 2014, an employee, a senior IT manager, who held a grudge against his employer for disciplinary action that he had been subject to a year previously, published the details of 100,000 Morrisons employees on the internet. The details were also deliberately sent to three separate newspapers. Following this breach of statutory duty in relation to the Data Protection Act and the misuse of private information and breach of confidence, claims were brought by over 5,500 employees.
When considering Morrison’s primary liability under The Data Protection Act the High Court only found one breach of the DPA. The employee responsible had access to the data for a project, as part of his job but the information had been published from his home, on his personal computer, outside working hours and with the main objective of harming Morrisons. The only breach the court could identify was that “Morrisons had not organised the deletion of the data from his work computer”. This failure had not caused any loss as the rule is aimed at the unintentional retention of data rather than its intentional misuse.

In order to assess vicarious liability it needed to be established whether the employee’s actions had been part of their job and if their wrongful conduct could be closely associated with their authorised duties. This would bring the breach during the course of employment. The data had been dealt with correctly as part of the manager’s role and the court held that the breach – which was the later publication of the data – was actually part of a sequence of events that was part of his role and was therefore connected to his employment.
Morrisons have been granted the right of appeal against the decision.

Written by

Lorraine Emery
4th January 2018

 

Vicarious Liability 2017

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If a doctor, assigned by a company to carry out medical examinations on prospective job applicants, commits a sexual assault, is that company then vicariously liable?

In Various Claimants v Barclays Bank plc the High Court concluded that, Yes, the company is liable.

In this case there were 126 claims of sexual assault and the Court applied the two-stage test: The first stage was to assess whether the relationship between the claimants and the respondent was one of employment or “akin to employment”, and the second was whether these assaults were connected sufficiently to the employment or quasi-employment.

The five criteria identified in Cox v Ministry of Justice [2016]was used to pass the first test. It was noted that the assaults had occurred as a result of work that had been scheduled by the bank by a doctor working on behalf of the bank. The bank were in control of what the doctor was doing no matter whether they directed him in how he should do it.

It was found, on the second test, that the assaults were connected sufficiently to the employment as they were completely interlaced in the performance of the doctor’s duties.

Even though the claims were brought many years after the alleged assaults it was deemed fair and reasonable to impose vicarious liability as this was now the Claimant’s only legal recourse.

Written by
Lorraine Emery
24th August 2017

Employer Liability for Violent Employees

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The Court of Appeal has recently considered two cases regarding the issue of when an employer is liable for the conduct of an employee (known as vicarious liability) where that employee assaults another.

In Weddall v Barchester Healthcare an employee, Mr Weddall phoned another employee, Mr Marsh and asked him to work a night shift. Mr Marsh not only refused but turned up at his workplace and assaulted Mr Weddall, who them claimed damages from his employer (Barchester Healthcare) on the grounds that the latter was responsible for the actions of Mr Marsh.

The Court held that Mr Marsh was “acting personally for his own reasons” and he had used Mr Weddall’s request to come to work as a “pretext for an act of violence” unconnected with his work. As such, the employer was not vicariously liable for the assault.

In Wallbank v Wallbank Fox Designs Ltd, Mr Brown was responsible for loading items on to a conveyer belt which passed through an oven. His boss, Mr Wallbank was concerned by the lack of items which Mr Brown had loaded and he went to the conveyer belt to add more. He then summoned Mr Brown to help him whereupon Mr Brown assaulted Mr Wallbank by throwing him on to a table and injuring him.

The Court held that “the employer should bear vicarious liability for the spontaneous force by which the employee reacted to the instruction give to him”. Mr Brown assaulted Mr Wallbank “in immediate response to instructions given to him” and hence he was “acting in the course of his employment”. The employer was accordingly liable to pay damages to Mr Wallbank because of Mr Brown’s conduct.

Written by
Robin Aston