Vicarious liability: the Supreme Court redresses the balance

Barclays Bank plc v Various Claimants [01.04.20] and WM Morrison Supermarkets plc v Various Claimants [01.04.20]

Date published

02/04/2020

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In a pair of very welcome decisions, the Supreme Court has reined in the onward march of vicarious liability.

In Barclays, the bank was found not to be vicariously liable for the alleged sexual abuse by a doctor and independent contractor engaged by them to conduct pre-employment medical examinations. The relationship between the bank and the doctor was not sufficiently close to an employment relationship to make it right and fair to impose liability for his conduct on Barclays. He was an independent contractor, running his own business.

In Morrisons, the employer was not vicariously liable for the criminal actions of its employee, Mr Skelton, as those actions were not connected to the sphere of activities he was employed to undertake.

Background

The law of vicarious liability is concerned with two questions:

  • What type of relationship needs to exist between two parties to make it right to require one party pay for the fault of the other?
  • In what way does the act need to be connected to that relationship to make it right to impose that liability?

Traditionally, the answer to both questions was relatively straight-forward - the relationship was that between an employer and employee (the relationship question) and the employer would be vicariously liable for the negligent acts of its employees carried out in the course of their employment (the conduct/connection question).

That relatively clear approach has been eroded over the last 20 years. There are a number of reasons for this, but principally a desire on the court’s part to reach a ‘just’ result when faced, for example, with incidents of intentional/criminal wrong-doing and a shifting industrial landscape, in which a range of non-traditional work relationships (agency, zero hours, use of independent contractors), have become more prevalent.

The relationship question

A strict employer/employee relationship is no longer required. If the relationship is sufficiently close to an employment relationship in certain key characteristics, that will be sufficient. So, for example, the Ministry of Justice was held vicariously liable for the negligent act of a prisoner working in the prison canteen (Cox v Ministry of Justice [2016]).

The conduct/connection question

The courts began to adopt a very broad interpretation of “course of employment”, concluding that the traditional approach was inadequate when faced with intentional wrongdoing, in particular claims of sexual abuse.

The test became whether the wrongdoing was so closely connected to the sphere of activities the employee was trusted to perform that it was “right and fair” to find the employer liable for that wrongdoing. So, for example, in the leading case of Mohamud v Wm Morrisons Supermarkets plc [2016], the employer was liable for an assault carried out by its employee on the claimant, the employee being employed to interact with customers, there being a unbroken sequence of events between the initial interaction and the assault and, throughout, the employee purporting to be acting on his employer’s business.

The Supreme Court reins in vicarious liability rules

Barclays - the relationship question

The Supreme Court found that the relationship between Dr Bates, an independent contractor engaged by Barclays, was not sufficiently close to an employment relationship to make it right to find Barclays liable for his alleged misconduct.

In doing so, the court considered all relevant factors, concluding that he was not “anything close” to an employee because he:

  • Was not paid a retainer, but a fee for each report
  • Was free to refuse an offered examination
  • Was thought to have his own medical liability insurance
  • Critically, was in a business on his own account with arrange of clients, one of whom was Barclays.

As such, to describe his engagement as ‘akin to employment’ was simply incorrect.

The case is a reminder that the court will consider all relevant factors in determining whether the relationship is sufficiently close to employment to make it right to impose vicarious liability.

It absolutely should not be taken as meaning that anyone who happens to call themselves an independent contractor will fall outside. The court will look at the underlying reality of the relationship. Where it is clear that the wrongdoer is carrying out his own independent business, however, vicarious liability will not apply.

Morrisons – the connection question

The Supreme Court found that the employee of Morrisons, Mr Skelton, was not acting in the court of his employment when he, motivated by a desire to harm his employer, caused a major data breach.

In so finding, the court was scathing of the Court of Appeal which had, it said, misunderstood and misapplied the authorities, in particular the key case of Mohamud.

Carefully distinguishing Mohamud, the court emphasised that the test was whether Skelton’s criminal conduct was so closely connected with the acts he was employed to do that it could fairly and properly be regarded as done in the course of his employment. It could not. Mere opportunity was not sufficient. His conduct so clearly departed from the scope of his employment that Morrisons should not be vicariously liable for it. Unlike the employee in Mahamud, Skelton was plainly not purporting to be going about his employer’s business.

Comments

These judgments do not reverse the development of vicarious liability principles over the last 20 years, but they do provide an extremely welcome corrective to what was becoming, wrongly, something of a free for all, with judges deciding whether ‘it was right’ to fix the defendant with vicarious liability.

Barclays provides clarity over the relevant factors to consider regarding the nature of the relationship.

Morrisons re-focuses on what it means to act in ‘the course of employment’ and demarcates more clearly between those acts which are and those which, many would say plainly, are not.

Both are extremely welcome correctives.

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