The first issue considered by the Court of Appeal was whether data protection legislation prevents a claimant from using that law to bring claims of vicarious liability, breach of confidence and misuse of personal data. The Court of Appeal decided that the legislation did not contain any such restriction. There was therefore no barrier to Morrisons’ employees bringing such claims.

The Court of Appeal 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.

A key issue was whether the fact that Skelton unlawfully uploaded the employee data while at his home (and therefore away from the workplace) meant that Morrisons should not be held vicariously liable for the data breach. The Court of Appeal decided that the first improper action committed by Skelton was the downloading of the employee data onto his USB stick, which he did at work. In any event, held the court, it is possible for employers to be vicariously liable for acts that occur outside of the workplace. The acts which Skelton did  at his home were part of an unbroken chain of events for which Morrisons remained vicariously liable.

“The tortious acts of Mr Skelton in sending the claimants’ data to third parties were in our view within the field of activities assigned to him by Morrisons.” Court of Appeal

The unusual consideration for the Court of Appeal 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 Court of Appeal decided, was yes. Motive was irrelevant even where the motive was to cause financial or reputational damage to the employer.

Morrisons’ appeal was therefore unsuccessful.

From a public policy perspective, the Court of Appeal noted that organisations can insure against the risk of losses arising due to data breaches by dishonest or malicious employees. The upshot of this case may therefore be increased insurance premiums for employers.

CASE WM Morrison Supermarkets plc v various claimants, Court of Appeal (Civil Division), 22 October 2018

Afterwards a number of guests retired to the nearby Hilton Hotel where they had rooms for the night. Some of that group continued drinking into the early hours of the morning when a dispute arose between the company’s managing director, John Major, and a sales manager, Clive Bellman. In an unprovoked attack Mr Major struck Mr Bellman twice and with such force that his subordinate fell to the floor, where he hit his head and fell unconscious. Mr Bellman suffered serious brain damage as a result.

Mr Major was arrested for assault, but the criminal case did not proceed after Mr Bellman refused to press charges. At the time Mr Bellman said he could not believe it had been Mr Major’s intention to harm a childhood friend.

The question for the High Court to decide was whether Northampton Recruitment, as the employer of Mr Major, should be vicariously liable for his assault on Mr Bellman. The High Court applied the ‘close connection’ test by which the company would be liable for Mr Major’s actions if his misconduct was found to be so closely connected with the work he was employed to do that it could be said that he had been acting in the ordinary course of his employment.

The High Court acknowledged that as Mr Major was the managing director of Northampton Recruitment he had a wide range of duties, including discretion as to expenditure. However, despite the liberty enjoyed by Mr Major in that role, the High Court decided he could not be regarded as being always on duty even when in the presence of other company staff or discussing work matters.

The High Court accordingly decided that there was insufficient connection between the position in which Mr Major was employed and the assault to make it right for the Northampton Recruitment to be held liable. Our report on this judgment can be found here.

Mr Bellman appealed the decision.

The Court of Appeal effectively reversed the High Court’s decision. It found that there was a sufficiently close connection between Mr Major’s job as managing director and the assault to make it fair that Northampton Recruitment should be liable for his actions.

Key to the court’s decision was the very wide remit given to Mr Major in his role as the company’s managing director. It noted that the company was small, Mr Major had responsibility for all management decisions and he would have seen the maintenance of managerial authority as a central part of his role. The Court of Appeal viewed the afterparty discussion that preceded the fight as a means of Mr Major asserting his authority. The assault was a similar exercise of authority, albeit that by doing so Mr Major misused the position entrusted to him.

“He chose to wear his metaphorical managing director’s hat and to [...]]]> http://lawandlabour.com/recruitment-company-liable-for-managers-fight-at-christmas-afterparty/feed/ 0 http://lawandlabour.com/barclays-bank-liable-for-sexual-assaults-by-company-doctor/ http://lawandlabour.com/barclays-bank-liable-for-sexual-assaults-by-company-doctor/#comments Mon, 21 Aug 2017 19:09:32 +0000 http://lawandlabour.com/?p=2492 The defendant in the case, Barclays Bank, needs no introduction. Between 1968 and 1984 Barclays used the services of Dr Gordon Bates who carried out medical examinations of prospective candidates for employment by the bank. Following Dr Bates’ death in 2009, a number of women alleged that they had been sexually assaulted by the doctor during their medical examinations. Many of the claimants had been teenagers at the time of the alleged assaults.

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/fight-at-xmas-afterparty/ http://lawandlabour.com/fight-at-xmas-afterparty/#comments Thu, 22 Dec 2016 18:19:23 +0000 http://lawandlabour.com/?p=2412 The defendant in the case, Northampton Recruitment, was a franchise business recruiting commercial drivers for temporary work. In December 2011, the company held its annual Christmas party at a golf club in Northamptonshire. The party passed without incident.

Afterwards a number of guests retired to the nearby Hilton Hotel where they had rooms for the night. Some of that group continued drinking into the early hours of the morning when a dispute arose between the company’s managing director, John Major, and a sales manager, Clive Bellman. In an unprovoked attack Mr Major struck Mr Bellman twice and with such force that his subordinate fell to the floor, where he hit his head and fell unconscious. Mr Bellman suffered serious brain damage as a result.

Mr Major was arrested for assault, but the criminal case did not proceed after Mr Bellman refused to press charges. At the time Mr Bellman said he could not believe it had been Mr Major’s intention to harm a childhood friend.

The question for the High Court to decide was whether Northampton Recruitment, as the employer of Mr Major, should be vicariously liable for his assault on Mr Bellman. The High Court applied the ‘close connection’ test by which the company would be liable for Mr Major’s actions if his misconduct was found to be so closely connected with the work he was employed to do that it could be said that he had been acting in the ordinary course of his employment.

The High Court acknowledged that as Mr Major was the managing director of Northampton Recruitment he had a wide range of duties, including discretion as to expenditure. However, despite the liberty enjoyed by Mr Major in that role, this did not mean that he was to be regarded as being always on duty even when in the presence of other company staff or discussing work matters.

The High Court drew a line between the activities that took place at the Christmas party and the spontaneous post-party drinks at the hotel. The Court found that the Christmas party was clearly connected to Mr Major’s employment because there was an expectation that employees would attend the party, while the early-morning drinking session was beyond the scope of his employment as attendance there was voluntary. This was the Court’s finding despite the altercation stemming from work-related matters and the company footing the bill for the drinks.

“…there was insufficient connection between the position in which Mr Major was employed and the assault to make it right for the Defendant to be held liable…” High Court

The High Court’s decision shows the importance of the time and place at which the misconduct occurred to the finding of vicarious liability. Had the altercation taken place at the Christmas party, then the company would likely have been found liable for its director’s actions. In any event, an employee who instigates a fight may face criminal prosecution, which could have serious and long-term negative consequences for their career, in addition to internal disciplinary proceedings [...]]]> http://lawandlabour.com/fight-at-xmas-afterparty/feed/ 0