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.

CASE Various claimants v Wm Morrison Supermarkets plc, High Court of Justice (Queen’s Bench Division), 1 December 2017

Photo: ‘MacBook Pro backlit keyboard’ by Tom Eversley

The claimants were 126 victims of Dr Bates’ alleged sexual assaults who were precluded from bringing civil claims against the doctor due to his death and the distribution of his estate. Their only course of redress was to claim against Barclays under the concept of vicarious liability. The question for the High Court to decide was whether Barclays, as the hirer of Dr Bates, should be vicariously liable for his alleged sexual assaults.

The general rule is that the hirer of an independent contractor cannot be vicariously liable for their actions. However, there is an exception to this rule if there is sufficient connection between the relationship of the hirer and contractor and the actions committed by the contractor. The High Court decided that the question of whether Barclays was vicariously liable for the doctor’s actions should be considered as a preliminary issue before proceeding to consider the merits of the claims.

The first question for the High Court to consider was whether the relationship between Barclays and Dr Bates was one of employment or “akin to employment”. This required analysis of five factors, the most important of which were (1) whether the doctor’s actions were the result of activity he had taken on behalf of Barclays, (2) whether that activity related to the business activity of Barclays, and (3) whether Barclays created the risk of the assaults perpetrated by Dr Bates by employing him.

In scrutinising the relationship between Barclays and Dr Bates, the High Court noted that the applicants had not had any choice as to which doctor carried out the medical examination which had been at the bank’s sole discretion. Barclays had also instructed the doctor as to what type of medical examination it required, including the need for a chest examination. The High Court decided that by providing a pre-employment health check Dr Bates had acted for the benefit of Barclays and by doing so his activities had been an integral part of the business activity of the bank. The High Court concluded that the requirements for the first stage of the vicarious liability test were met.

The second issue to be decided was whether there had been a sufficiently close connection between Dr Bates’ actions and the work he had been hired to do. The High Court decided that the alleged sexual abuse had been inextricably woven with the tasks the bank had hired the doctor to carry out.

“The task assigned to Dr Bates placed him in a position to deal with the claimants. On the alleged facts he abused that position. It is difficult to see how it can sensibly be argued that [...]]]> http://lawandlabour.com/barclays-bank-liable-for-sexual-assaults-by-company-doctor/feed/ 0 http://lawandlabour.com/et-fees-stay/ http://lawandlabour.com/et-fees-stay/#comments Sat, 20 Dec 2014 10:02:47 +0000 http://lawandlabour.com/?p=1819 Unison’s challenge to the Employment Tribunal fees scheme has suffered another setback with the High Court’s decision to dismiss the union’s application for judicial review. The Court decided that although fees may amount to a deterrent, they are not an excessive restriction against bringing a claim in the Employment Tribunal.

Unison had challenged the fee scheme by arguing that fees made it exceptionally difficult for an employee to bring an Employment Tribunal claim. They had also argued that the fee scheme operated in a discriminatory manner, particularly in relation to women. The High Court dismissed both of these arguments.

The Court first considered whether employees were effectively barred from bringing claims in the Employment Tribunal, and found this was not the case. The Court said although some employees might find it difficult to pay Employment Tribunal fees, this did not satisfy the test, which required that it must be virtually impossible or excessively difficult for an employee to bring a claim.

“The setting in place of a regime that merely discourages those with no arguable grievance cannot constitute an interference with a right of access to the court.” High Court

The Court was dismissive of Unison’s reliance on statistics to support its arguments. It noted that although the statistics showed a striking reduction in the number of Employment Tribunal cases, this was not sufficient to draw the conclusion that workers were effectively barred from bringing claims due to the cost involved.

“The statistics relied upon in this case raise a legitimate question about the operation of the new regime, but they do not provide the answer to that question.” High Court

Better evidence would be actual cases in which the Court could review an individual’s income and expenditure and decide whether the person had been effectively barred from bringing a claim.

Even if the union’s arguments were to be made out, the High Court felt that removal of the fee scheme altogether was not an appropriate solution. The Court stated that it would be more sensible to allow the Lord Chancellor to exercise his discretion to waive fees where exceptional circumstances necessitated it.

The High Court also dismissed Unison’s arguments on the fee scheme operating as a form of indirect discrimination, particularly in relation to women. The statistics proffered by Unison did not support their view that such discrimination had occurred. Even if the scheme was discriminatory, the Court felt its introduction could be justified as the cost of running a Tribunal service required some contribution from those who bring claims.

Soon after the judgment was published, Unison announced plans to appeal. The matter therefore continues to run.

CASE R on the application of Unison (No. 2) v (1) The Lord Chancellor (2) Equality and Human Rights Commission, High Court, 17 December 2014

The NUM provided a generous benefit for presidents of the union by purchasing a London home for them to live in during office and into retirement.  Scargill decided not to make use of this benefit.  Instead, he asked the union’s Executive Committee to pay rent on the flat in which he resided.  This was agreed.

When dispute over the benefit went to court, the question was whether the union should continue to pay the rent following Scargill’s retirement.  Scargill argued that the obligation relating to the flat replaced the benefit relating to the purchase of a house, therefore it continued post retirement.  However, the High Court found that this arrangement had not been agreed to by the Executive Committee.  In addition, a 1992 contract which obliged the union to pay rent on the flat following Scargill’s retirement was not effective as it had not been approved by the Executive Committee.

CASE National Union of Mineworkers v Scargill, High Court, 2012