We previously reported the sorry saga involving Morrisons Supermarkets, which was the unwitting target of a malicious leak of employee data by a disgruntled auditor (report our report here). In July 2015, the perpetrator in the case, Andrew Skelton, was found guilty of his criminal actions and sentenced to 8 years’ imprisonment, a sentence he is currently serving. The civil claims arising from the data breach have now made their way to the High Court.

More than 5,500 Morrisons’ employees brought a group action against Morrisons for (1) breach of the Data Protection Act 1998, (2) breach of confidence and (3) misuse of personal data. The High Court considered whether Morrisons might have primary and/or secondary (vicarious) liability for Skelton’s actions.

In the first part of its decision, the High Court dismissed any suggestion that Morrisons might have primary liability for the data breach. It decided that primary liability rested solely with Skelton because the company had not directly carried out any of the unlawful acts.

The High Court then turned to the question of whether Morrisons could be vicariously liable for Skelton’s acts. The test for vicarious liability requires consideration of whether the act in question is sufficiently closely connected with the employee’s employment so that it would be only fair and just to hold the employer liable for the employee’s actions. The unusual consideration for the High Court in this case was that Skelton’s acts had been aimed at harming Morrisons. The question was therefore whether Morrisons could be vicariously liable for an act that had been specifically designed to harm the company? The answer, the High Court decided, was yes.

“There is a sufficient connection between the position in which Skelton was employed and his wrongful conduct, put into the position of handling and disclosing the data as he was by Morrisons…to make it right for Morrisons to be held liable ‘under the principle of social justice'”. High Court of Justice, Queen's Bench Division

The saga is probably not yet over as the High Court gave Morrisons leave to appeal its decision. The Court expressed concern that its ruling could mean that it had acted as an accessory to Skelton in further assisting his plan to harm his employer.

Photo: ‘MacBook Pro backlit keyboard’ by Tom Eversley