Kerry Underwood

EMPLOYMENT: VICARIOUS LIABILITY

with 2 comments


There has been a number of recent cases in relation to the vicarious liability of an employer for actions by an employee.

 

There is no doubt that the trend is to increase the scope of that liability.

 

Assault

 

The original High Court decision in

 

Bellman v Northampton Recruitment Ltd [2017] IRLR 124

 

was an exception to that trend, but the Court of Appeal has now overturned that decision and this has reinforced the trend, and the Court of Appeal’s decision is

 

 

Bellman v Northampton Recruitment Ltd [2018] EWCA Civ 2214 (11 October 2018) .

 

 

Here the claimant was employed by the company as a sales manager and John Major was the managing director and a shareholder.

 

The company had a Christmas party at a golf club and paid for food and drink and for taxis to, and accommodation at, a hotel nearby.

 

As the party at the golf club came to an end at around midnight, Mr Major paid for anyone who wanted to get a taxi to the hotel and to continue drinking.

 

At around 2.00am the conversation turned to work and at 2.45am a group went outside and an argument developed between the claimant and Mr Major about the merits of a new employee.

 

Mr Major became annoyed that his judgment was being questioned and summoned the remaining employees present and told them that he was in charge and owned the company and would do what he wanted.

 

The claimant challenged again the merits of the new employee and Mr Major twice punched him, causing permanent brain damage.

 

The High Court held that the company was not vicariously liable, but the Court of Appeal overturned that finding, holding that it is necessary to consider the field of activities assigned to the employee in a broad sense and to look at the matter objectively taking account of the position in which the employer has placed the wrongdoer.

 

Here Mr Major was exercising his very wide remit as the directing mind and will of a small company with responsibility for all management decisions, including maintenance of his managerial authority.

 

In spite of the time, place and circumstances, Mr Major was doing just that and so there was sufficient connection between Mr Major’s field of activities and the assault to render it just that the company should vicariously liable for his actions.

 

Data Protection

 

In WM Morrison Supermarkets Plc v Various Claimants [2018] EWCA Civ 2339 (22 October 2018)

 

the Court of Appeal upheld the High Court’s finding that the supermarket chain Morrisons was vicariously liable for the actions of one its employees in deliberately disclosing confidential data about 100,000 of its staff, even though the motive of that employee was to damage Morrisons.

 

Here, the employee had a grudge against Morrisons after he had been disciplined for unauthorised use of its postal facilities for personal use.

 

He carefully planned and executed a scheme to post data of 99,998 employees of Morrisons on a file sharing website and sent details to the press.

 

He was sentenced to eight years in prison.

 

5,000 employees sued Morrisons and the Court of Appeal upheld the High Court’s decision that there was a sufficient connection between the position in which he was employed and his wrongful conduct, so as to create vicarious liability.

 

The court also found that vicarious liability of an employer for misuse of private information by an employee and for breach of confidence by an employee is not excluded by the Data Protection Act.

 

The Act here was the Data Protection Act 1998, but the same principles apply in relation to the current legislation, that is the Data Protection Act 2018.

 

The Data Protection Act was concerned with the primary liability and obligations of data controllers and not with vicarious liability.

 

Here it was common ground that the employee, not Morrisons, was the data controller and Morrisons was vicariously liable for the act of the data controller, that is the employee.

 

Motive is irrelevant and so the fact that Morrisons was vicariously liable for a tort aimed to damage it made no difference.

 

 

Co-workers and Whistleblowing

 

In Timis and another v Osipov [2018] EWCA Civ 2321

 

the Court of Appeal held that co-workers’ liabilities for damages for detriment suffered by a whistleblower, within the meaning of section 47B of the Employment Rights Act 1996, included loss suffered as a result of dismissal within section 103A of the Act.

 

Generally damages for detriment do not include damages flowing from dismissal as there is a separate cause of action against the employer for dismissal.

 

However there is no cause of action against a fellow worker for unfair dismissal.

 

Consequently the Court of Appeal upheld the decision of the Employment Tribunal and the Employment Appeal Tribunal that the liability of a co-worker for detriment did extend to detriment and damages flowing from dismissal.

 

The liability will generally be joint and several as between the co-worker and the employer, as here, and in any event the employer will generally be vicariously liable for the co-worker’s actions as well.

 

However, where the employer is insolvent this gives the victim of whistleblowing the ability to enforce the whole damages award against the co-worker, who will of course not enjoy the limited liability that most companies have.

 

Thus an insolvent employer avoids the debt, which becomes the sole responsibility of the fellow worker, although there is no liability for the basic award in unfair dismissal cases.

 

The same applies in relation to all forms of discrimination claim under the Equality Act 2010.

 

I suspect that this is not quite what Parliament had in mind.

 

 

 

 

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Written by kerryunderwood

January 14, 2019 at 6:47 am

Posted in Uncategorized

2 Responses

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  1. Very helpful; thanks

    David Roberts

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    David Roberts

    January 14, 2019 at 11:24 am

  2. Thank you!

    kerryunderwood

    January 15, 2019 at 7:02 pm


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