Morrisons & vicarious liability – the Supreme Court sets the record straight

The Supreme Court has delivered its judgment in WM Morrison Supermarkets plc v Various Claimants, providing welcome clarification on the tests for establishing vicarious liability and the interpretation of the same.

This case concerned a vengeful Morrisons employee (AS), who retaliated against a minor disciplinary sanction by posting the personal data (including bank details, addresses and salary information) of almost 100,000 Morrisons employees online. The High Court and Court of Appeal had previously held that Morrisons was vicariously liable for AS’ actions, with emphasis being placed on the earlier Supreme Court judgment in Mohamud v WM Morrison Supermarkets plc.

In a move which will allow employers to breathe a sigh of relief, the Supreme Court has overturned the Court of Appeal’s decision, finding Morrisons not to be vicariously liable for AS’ actions and welcoming the “opportunity to address the misunderstandings which have arisen” since its decision in Mohamud.

In its judgment, the Supreme Court held:

1. That its decision in Mohamud did not establish new legal principles, but was simply an application of the existing test for vicarious liability to the facts at hand.
2. The general requirement to establish employer vicarious liability is therefore that “the wrongful conduct must be so closely connected with acts the employee was authorised to do that … it may fairly and properly be regarded as done by the employee while acting in the ordinary course of his employment.” This requires an assessment of:
   
   

   a. whether the acts of the employee were within the field of activities which the employee was authorised to perform; and

   b. whether there was a sufficient connection between the role and the wrongful conduct to make the employer liable for the wrongful acts.

3. The “close connection” test is not simply a question of timing or causation, and vicarious liability is “not determined according to individual judges’ sense of social justice”.
4. Motive (i.e. why the employee acted wrongfully) can be highly relevant to the question of employer vicarious liability. If the employee is “engaged in an independent personal venture” (or, to use the somewhat archaic legalese, “going on a frolic of his own”) and is engaged in pursuing only his own interests, rather than his employer’s, the employer will not usually be vicariously liable.

On the facts of this case:

a. it was “abundantly clear” that AS was pursuing a personal vendetta, and was not engaged in furthering Morrisons’ business, when he committed the wrongful act; and

b. the disclosure of employee data on the internet was not an act AS was authorised by Morrisons to do – it did not form part of his functions or field of activities. Whilst AS’ role gave him the opportunity to commit the wrongful act, this is not in itself sufficient to impose vicarious liability.

This decision provides welcome reassurance that employers will not usually be vicariously liable in the exceptional circumstances where employees commit wrongful acts when pursuing personal vendettas or acts of revenge.

However, whilst the Supreme Court decision clarifies the test for employer vicarious liability, the journey of this case through the judicial system highlights the practical difficulties in applying that test. Each decision will be dependent on its facts, and the question as to whether an employee is pursuing a personal vendetta may not always be as clear cut.