Does a ‘wrongdoing’ employee’s motive matter?

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Morrisons v Various Claimants (2020)2 WLR 941; BLM; SC

Facts

Morrison Supermarkets employed Mr Skelton, who was responsible for sending the entire payroll details of its employees annually to the auditors.

In 2013 he did so, but kept a copy, which he then sent to websites and three newspapers.  He was in breach of the Data Protection Act and ended up in prison.

A number of other employees sued Morrisons both directly for allowing this to happen, and as vicariously libel for Skelton’s wrongdoing.  The trial judge found that Morrisons was not liable itself, but was vicariously liable for the acts of its employee.

The Supreme Court held

  1. Looking at the wrongful conduct, was it “closely connected” to what the employee was supposed to do? The court thought not.
  2. The disclosure of data online was not a part of Skelton’s job in any sense, and did not arise “in the ordinary course of his employment”.
  3. It was highly material that Skelton was acting out of personal motives, not just incompetently trying to do his job.
  4. Therefore, Morrisons was not vicariously liable for Skelton’s misconduct.

Comment

The question here was not whether Skelton was an employee, but rather whether his wrongful actions happened while he was doing his job, as when a man employed as lorry driver negligently drives his employer’s lorry into a pedestrian while making a delivery (‘Twine v Bean’s Express’).

In this case, the outcome might have been different if, while trying to send the records to the auditors, Skelton had accidentally cc’d them to a third party.

Note that the motive for which he acted was also a key issue. The fact that his employment gave him the opportunity to commit a wrongful act is not sufficient to warrant the imposition of vicarious liability.

An employer is not normally vicariously liable where the employee was not engaged in furthering his employer’s business but was rather pursuing a personal vendetta.

For more specialist legal advice please get in touch with Lucilla Waugh on 0191 211 7984 or email [email protected]