An employer cannot be held responsible for the wrongful conduct of its employee who went on 'a frolic of his own', so held the Supreme Court in the Morrisons case.

Introduction

As mentioned in our discussion in Part 1, this note deals with the second element of vicarious liability, namely the connection between the relationship of employee/employer and the tortfeasor's wrongdoing. In this case, the tortfeasor was an employee of Morrisons supermarket therefore the first element of vicarious liability did not arise for consideration.  

Issue 

Mr Skelton who worked as a senior auditor in the internal audit team disclosed personal data of almost ten thousand employees to a publicly accessible file-sharing website, with links to the data posted on other websites. He did this in an attempt at vengeance against his employer as he had previously given a verbal warning for a misconduct. The claimants, who were employees of the supermarket, brought a group action against their employer for breach of the statutory duty under s.4(4) of DPA 1998, misuse of private information and breach of confidence. These claims were also brought on the basis that Morrisons was vicariously liable for Mr Skelton's conduct. The primary issue for the Supreme Court was whether Morrisons was vicariously liable for Mr Skelton's conduct. 

Judgment 

Much like the judgment in Barclays Bank v Various Claimants, the leading judgment by Lord Reed was an exposition and clarification of the principle governing the connection between the relationship of employee/employer and the wrongdoing. In essence, he stated that what the courts have to decide is "whether the wrongful conduct was so closely connected with acts the employee was authorised to do that, for the purposes of the liability of the employer, it may fairly and properly be regarded as done by the employee while acting in the ordinary course of his employment" as previously held by Lord Nicholls in Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48. 

It is important to note that a temporal or causal connection between what the employee was authorised to do and his wrongdoing does not in itself satisfy the close connection test. The mere fact that Skelton's employment gave him the opportunity to commit the wrongful act would not be sufficient to warrant the imposition of vicarious liability. There is a distinction in law between cases where the employee misguidedly commits a wrongful act in executing his duty, and where the employee is engaged solely in pursuing his own interests: 'on a frolic of his own'.

Applying the above principles, Lord Reed concluded that Skelton's wrongful act was not so closely connected with acts which he was authorised to do that, for the purposes of Morrisons' liability to third parties, it can fairly and properly be regarded as done by him while acting in the ordinary course of his employment. This is because he was pursuing a personal vendetta, seeking vengeance for the disciplinary proceeding some months earlier.  

Comment 

This will come as a double relief (following on from Barclays Bank case) for many employers. The position has not changed hugely from prior cases on this issue. Simply relying on whether there was a temporal or causal connection between the employment relationship and the wrongdoing would not expose the employer to liability for wrongful conducts by its employee. 

WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12