• news-banner

    Expert Insights

Vicarious liability – the Supreme Court brings employers some comfort

The Supreme Court has recently handed down two judgments on an employer’s vicarious liability for the actions of an employee in one case and a self-employed doctor in the other.

No vicarious liability for data breach

Employers will be relieved at the Supreme Court’s decision in Morrisons v various claimants that Morrisons was not vicariously liable for a major data breach by a rogue employee whose express intention was to cause the company financial and reputational harm. Mr Skelton, an internal auditor, had disclosed payroll details of nearly 100,000 employees on the internet. There was no financial loss, but over 5,000 employees had brought damages claims for distress. 

The Supreme Court clarified that, for vicarious liability to arise, the wrongful conduct had to be so closely connected to acts that the employee was authorised to do, it might be fairly and properly be regarded as done by the employee while acting in the ordinary course of their employment. In this case, the disclosure of data on the internet was not part of the employee’s functions or field of activities. The Court also confirmed that it was also not enough that the employee’s role gave them the opportunity to commit the wrongful act and the fact that there was a close temporal link and an unbroken chain of causation did not of itself satisfy the close connection test. Also, it considered that the employee’s motive was highly relevant particularly in a case such as this where he was pursuing a personal vendetta.  

Morrisons was helped by the fact that it was itself not in breach of any data protection obligations. This emphasises how important it is for employers to ensure they have robust procedures in place to ensure compliance particularly since GDPR came into effect otherwise they will be subject to significant fines and compensation. Going forwards, courts will look at what the data controller has done to prevent data security breaches and in this era of mandatory notification businesses will need to look carefully at the measures they take to mitigate against the risks including taking out insurance to protect themselves.  

No vicarious liability for sexual assault

The Supreme Court also held that the employer was not vicariously liable in Various claimants v Barclays Bank for the actions of a rogue doctor who sexually assaulted over 100 female job applicants sent for a pre-employment medical check. This Court found that the doctor was genuinely self-employed on his own account as the examinations took place in his home, he was not paid a retainer and had his own portfolio of clients of which Barclays was one. His relationship with Barclays was not akin to an employment relationship but that of independent contractor.

This is a harsh decision for the victims as they have no remedy as the doctor had died in 2009 and the estate had been distributed. However, it confirms beyond doubt that vicarious liability does not apply to the relationship with a genuinely self-employed person.

Our thinking

  • Mental Health Management

    Nick Hurley

    Events

  • Is the opening up of Nexity's services division capital a consequence of the difficulties facing the French property sector?

    Dimitri-André Sonier

    Quick Reads

  • Arbitration Act 1996: Law Commission recommends limited changes

    Richard Kiddell

    Insights

  • Charles Russell Speechlys advises Nortal on its acquisition of Questers

    Hamish Perry

    News

  • Family and Employment law assistance in legal advice deserts

    Sarah Farrelly

    News

  • Property Patter: the latest on the Building Safety Act

    Richard Flenley

    Podcasts

  • James Souter writes for City AM on Meta pulling out of its London office

    James Souter

    In the Press

  • A Labour government: what might be in store for personal taxation?

    Sarah Wray

    Quick Reads

  • Charles Russell Speechlys advises Puma Private Equity on its £3.5 million investment into TravelLocal

    David Coates

    News

  • The Evening Standard quotes Rose Carey on the increase in visa fees

    Rose Carey

    In the Press

  • Charles Russell Speechlys advises Zenzero’s management team on its majority acquisition by Macquarie Capital

    Mark Howard

    News

  • David Savage writes for Construction News on the upcoming building-control overhaul

    David Savage

    In the Press

  • Updates and points to note in relation to buy-to-let residential properties

    Twiggy Ho

    Insights

  • Felicity Chapman writes for Insider Media on alternatives to court for divorcing business owners

    Felicity Chapman

    In the Press

  • Investment Week quotes Julia Cox on the proposed scrapping of inheritance tax

    Julia Cox

    In the Press

  • Charles Russell Speechlys expands commercial offering with the appointment of Rebecca Steer

    Rebecca Steer

    News

  • The Times quotes Gareth Mills on the CMA’s preliminary approval of the Activision Blizzard-Microsoft deal

    Gareth Mills

    In the Press

  • Heritage property and conditional exemption

    Sarah Wray

    Insights

  • Property Week quotes Cara Imbrailo on Rishi Sunak scrapping MEES requirements for residential landlords

    Cara Imbrailo

    In the Press

  • The Financial Times quotes Emma Humphreys on UK rental costs

    Emma Humphreys

    In the Press

  • City AM quotes Gareth Mills on the CMA’s new set of principles for regulating AI

    Gareth Mills

    In the Press

  • Hamish Perry and Mike Barrington write for The Evening Standard on whether a merger between the CBI and Make UK can work

    Hamish Perry

    In the Press

  • Office to Lab Conversions: A new lease of life (sciences) for some of London’s offices?

    Georgina Muskett

    Quick Reads

  • New Governance Guidelines for family-owned businesses in the UAE

    William Reichert

    Quick Reads

  • The Family Fund: Bank of Mum & Dad 2.0

    Vanessa Duff

    Quick Reads

  • The perpetual struggle between the environment, heritage and development: the M&S decision vs 55 Bishopsgate

    Sophie Willis

    Quick Reads

  • Treasury Committee endorses mandatory venture capital diversity policies from 2025

    Lia Renna

    Quick Reads

  • Oops!....I did it again - Britney's third divorce

    Charlotte Posnansky

    Quick Reads

  • Recognising financial abuse in a relationship

    Vanessa Duff

    Quick Reads

  • Has the Orpéa plan impaired shareholder's consent? - Le plan de sauvegarde d'Orpéa n'a-t-il pas vicié le consentement des actionnaires historiques ?

    Dimitri-André Sonier

    Quick Reads

  • Will the downturn in the Paris region property market lead property companies to turn to ad hoc proceedings, as they did in the 1990s?

    Dimitri-André Sonier

    Quick Reads

  • Making BitCoin a BitClearer

    Charlotte Posnansky

    Quick Reads

  • Key figures gather to discuss the future of Gloucestershire

    Jonathan Morley

    Quick Reads

  • UK CMA's blocks Microsoft's acquisition of Activision Blizzard, a potentially significant decision for SMEs in the video gaming sector

    Rebecca Burford

    Quick Reads

  • Key takeaways from the UK Government's "Green Day"

    Martha Glaser

    Quick Reads

  • From Holby City to 5 Fleet Place - David Ames shares his experience of "Behind the Lens" with CRS

    Quick Reads

  • The Domestic Abuse Act 2021 in Action

    Sophia Leeder

    Quick Reads

  • Number crunching times

    Emma Humphreys

    Quick Reads

  • This week in the news: inheritance tax interest costs rising due to Probate delays

    Sarah Wray

    Quick Reads

  • WhatsAppGate - Should businesses be reviewing their social media policies?

    Anna Rogers

    Quick Reads

Back to top