Rowing back on vicarious liability

Two judgments from the Supreme Court have set restrictions on the scope of vicarious liability. In Barclays Bank v Various Claimants [2020] UKSC 13 the test was whether the tortfeasor was in fact the ‘employee’ of the employer. The claimants alleged that they had suffered sexual abuse by a GP hired by the bank to carry out medical assessments of employees.

Lady Hale, with whom the remainder of the court agreed, gave judgment. She began with the history of the expansion of the doctrine of vicarious liability, referring to Lister v Hesley Hall Ltd [2001] UKHL 22 where the owners of a children’s home were held vicariously liable for the sexual abuse perpetrated by their warden. Then, in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 115, vicarious liability was extended to a person who was not in law the employer of the tortfeasor. In E v English Province of Our Lady of Charity [2012] EWCA Civ 938; [2013] QB 722, the claimant alleged that while living in a children’s home, she had been sexually abused by a priest appointed by the local bishop. The court held that his relationship with the bishop was sufficiently ‘akin to employment’ to make it fair and just to hold the bishop vicariously liable. Next came Various Claimants v Catholic Child Welfare Society [2012] UKSC 56. The claimants had attended a school owned by the society which also employed the teachers. Some of the teachers, and the head teacher, were members of the Christian Brothers. Abuse was alleged against some of the brothers. The Supreme Court had decided that the Christian Brothers could be vicariously liable for that abuse, jointly with the society. Lord Phillips listed a number of policy reasons that might make it fair, just and reasonable to impose vicarious liability upon an employer for the torts committed by an employee in the course of his employment:

• the employer was more likely to have the means to compensate the victim than the employee;
• the tort would have been committed as a result of activity being taken by the employee on behalf of the employer;
• the employee’s activity was likely to be part of the business activity of the employer;
• the employer, by employing the employee to carry on the activity, would have created the risk of the tort committed by the employee; and
• the employee would, to a greater or lesser degree, have been under the control of the employer.

Lady Hale said that these were not the only criteria by which to judge vicarious liability, as could be seen from the judgments in E and the Various Claimants cases above. Shortly after those decisions, the Supreme Court decided in Woodland v Swimming Teachers Association [2013] UKSC 66 that a school had a non-delegable duty of care towards the pupils for whom it arranged compulsory swimming lessons with an independent contractor. However, the court also said that vicarious liability had never been extended to the negligence of those who were truly independent contractors. Most recently, in Armes v Nottinghamshire County Council [2017] UKSC 60 the Supreme Court decided that a local authority could be vicariously liable for abuse carried out by foster parents.

Lady Hale said that there was nothing in these judgments to suggest that the classic distinction between employment and relationships akin or analogous to employment, and the relationship with an independent contractor, had been eroded. In the present case, although the GP was a part-time employee of the health service, he was not at any time an employee of the bank. Nor, viewed objectively, was he anything close to an employee.

In WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12, the question was whether there was a ‘close connection’ between the employee’s employment and his misconduct. A senior auditor working for Morrisons published employees’ personal data on the internet. The claimants sued for breach of data protection, misuse of private information and breach of confidence.

Lord Reed (with whom the UK Supreme Court agreed) referred to Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11. A motorist went into a petrol station and asked if some documents could be printed. The attendant refused the request and ordered the motorist to leave, using racist and threatening language, before assaulting him. In that case, the Supreme Court said that one of their reasons for finding a ‘close connection’ was that it was the employee’s job to attend to customers and respond to their enquiries. The employee’s misconduct was inexcusable but within the ‘field of activities’ assigned to him.

In the present case, the disclosure of the data on the internet did not form part of the employee’s functions or field of activities. It was not an act he was authorised to do. The fact that the five factors listed by Lord Phillips in Various Claimants v Catholic Child Welfare Society were all present was nothing to the point. Those factors were concerned with the question of whether the relationship between the wrongdoer and the defendant was sufficiently akin to employment as to be one to which the doctrine of vicarious liability should apply. Although there was a close temporal link and an unbroken chain of causation linking the provision of the data to the employee and his disclosing it on the internet, that did not in itself satisfy the close connection test. The issue of whether the employee was acting on his employer’s business or for purely personal reasons was highly material. The mere fact that the employee’s employment gave him the opportunity to commit the wrongful act would not be sufficient to warrant the imposition of vicarious liability. Morrisons could not therefore be held liable for their employee’s conduct.

These Supreme Court judgments represent something of a row back on the law of vicarious liability, which hitherto had been expanded considerably in recent years. They also present defendants with an opportunity to challenge their responsibility, where there is tortious behaviour by their employees, or those whom they hire to carry out important and sensitive tasks.

 Malcolm Johnson is a senior solicitor at Hudgell Solicitors