On 1 April 2020 the Supreme Court handed down judgment on 2 important cases which clarify and restrict the extent of an organisation’s vicarious liability for the actions of others.
In one of these cases, WM Morrison Supermarkets plc v Various Claimants  UKSC 12, the Supreme Court concluded that the supermarket chain Morrisons should not be held responsible for the actions of a disgruntled employee who wrongfully and purposely uploaded the personal data of almost 100,000 other employees on a publicly accessible file sharing website. The decision focussed on the fact that at time of the disclosure the employee had been carrying out a personal vendetta against Morrisons and was not engaged in furthering the course of the company’s business. Our colleagues in Plexus Law’s Professional Indemnity & Financial Risks team have covered the Morrisons judgment in detail in a separate post; please click here to view.
The Morrisons decision has important ramifications for abuse and sensitive claims where the vast majority of cases arise out of wrongful and unauthorised acts perpetrated by employees or third parties. Within this context it is important to consider where this decision leaves abuse and sensitive claims going forwards.
The doctrine of vicarious liability has expanded in recent years through a series of leading judgments which include Lister v Hesley Hall Ltd  UKHL 22 and Various Claimants v Catholic Child Welfare Society  2 AC 1 (AKA the Christian Brothers case). In these cases the courts have held that schools and religious organisations are vicariously liable for abuse and assaults perpetrated by teachers, house wardens and clergy despite these actions falling way outside of the perpetrators’ job descriptions. Even more recently the courts have been willing to hold companies responsible for the actions of employees who have assaulted customers on company premises (Mohamud v WM Morrison Supermarkets plc  UKSC 11) and colleagues at work social events (Bellman v Northampton Recruitment Ltd  EWCA Civ 2214).
In reaching these decisions the courts have focussed on the Close Connection test set out in Lister and other cases – i.e. whether the unauthorised acts of the employee are so closely connected with the act which the employer has authorised that they may properly be considered as being within the scope of the employee’s employment. In the Christian Brothers case it was noted that clergy used and abused the authority conferred on them by the religious organisation to perpetrate incidents of abuse.
The decision in Morrisons could be seen as being at odds with these earlier decisions. The Supreme Court considered that the disgruntled Morrisons employee was going beyond his authorised activities (which included passing payroll data to external auditors) such that he was pursuing a personal vendetta and was not engaged in Morrisons’ business. But it remains the case that no organisations are likely to authorise staff or volunteers to commit acts of abuse – if any employee committing acts of abuse is going beyond their authorised activities how can it be considered fair, just or reasonable to hold the organisation responsible?
The Judgment of Lord Kerr hints at a special regime for cases arising out of sexual abuse:
“The close connection test has been applied differently in cases concerned with the sexual abuse of children, which cannot be regarded as something done by the employee while acting in the ordinary course of his employment. Instead, the courts have emphasised the importance of criteria that are particularly relevant to that form of wrongdoing, such as the employer’s conferral of authority on the employee over the victims”.
It remains to be seen how this will play out in practice. It is notable that in a recent High Court judgment handed down before the Morrisons decision, Griffiths J found that a school was not vicariously liable for sexual offences against a pupil perpetrated by a kitchen porter at the school (EXE v The Governors of the Royal Naval School  EWHC 596 (QB)).
If nothing else, the Morrisons judgment reinforces the separateness of abuse and sensitive claims and the need for expert advice when dealing with claims in this niche area of law.
Please read more about these landmark cases in our other Case Updates:
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If you would like to know more about this matter, please speak to your contacts at Plexus Law:
Andrew Caplan, Partner
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Kate Prestidge, Partner
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Marlon Ellis, Solicitor
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