What Was He Doing? Vicarious Liability After WM Morrison PLC v Various Claimants  UKSC 1211 May
Employers can be held vicariously liable for wrongful acts performed by their employees. As one would expect, an employer can be held liable for damage caused by an employee who negligently performs an action that the employer has authorised or instructed him to perform, as when an employed labourer negligently fits a kitchen and causes damage. In certain cases, however, employers can also be held vicariously liable when their employees deliberately perform wrongful actions for their own reasons.
The classical statement of the test for vicarious liability, first presented in Salmond on Torts (1907), focused narrowly on whether the employee had committed the wrongful act by performing a task authorised by the employer in an unauthorised way; if the wrongful act was not performed in furtherance of a task authorised by the employer, the employer was not liable because the employee had gone on a frolic of his own. The classical test thus struggled to cope with deliberate wrongful action. The modern test is, for that reason, much broader. Following Lister v Hesley Hall Ltd  UKHL 22 and Dubai Aluminium Co Ltd v Salaam  UKHL 48 – two cases that dealt with deliberate wrongful action – an employer can be vicariously liable for acts performed by its employee, provided that there is a sufficiently “close connection” between the wrongful act and the actions that the employee was authorised to perform by the employer that it is “fair and proper” to hold the employer liable.
Lister and Dubai Aluminium deliberately declined to provide a definition of the “close connection”. Rather, and per Lord Nicholls of Birkenhead at paragraph 26 of Dubai Aluminium, in order to determine whether a close connection exists, the court must make an evaluative judgment based on all the circumstances of the case and pervious court decisions. However, the Supreme Court has recently revisited the nature of the close connection in WM Morrison PLC v Various Claimants  UKSC 12, an important judgment which affirms an importantly clarifies the approach outlined by Lord Toulson in the earlier decision of Mohamud v WM Morrison Supermarkets PLC  UKSC 11. Significantly, both decisions consider the relationship the capacity in which the employee was acting when he performed the wrongful act and the question whether there was a close connection between that act and his employment. Accordingly, Mohamud and WM Morrison PLC make important reading for employers and claimants alike.
The employee in Mohamud – Mr Khan – was a supermarket petrol station attendant, employed to serve customers at the kiosk. When the claimant asked Mr Khan if he would print some documents from a USB, Mr Khan became verbally and racially abusive; he then ordered the claimant to leave the premises, threatened violence if he returned, followed him outside and ultimately physically assaulted him. The claimant issued proceedings against Mr Khan’s employer, but lost at first instance and on appeal. The court found that there was not a close connection between the assault and Mr Khan’s duties, which were limited to interacting with customers at the counter; in following the claimant outside and launching an unprovoked assault, Mr Khan had embarked upon a frolic of his own, for which his employer was not liable.
The Supreme Court, by contrast, unanimously found the employer liable. After a thorough review of the authorities, Lord Toulson found at paragraph 47 that there was a close connection between Mr Khan’s course of employment and the assault. Mr Khan’s “foul mouthed” way of ordering the claimant to leave was inexcusable, but it was within the “field of activities” assigned to him. Moreover, and importantly, it was wholly artificial to think of Mr Khan “metaphorically taking off his uniform” and stepping outside the course of his employment when he left the counter and followed the claimant outside: there was an unbroken sequence of events between the order to leave and the assault because it was plain that the dispute between Mr Khan and the claimant was not personal, but had stemmed from Mr Khan taking exception to the claimant’s enquiry about printing; and in ordering the claimant to leave the premises and enforcing that order with violence, Mr Khan was at least purporting to act in his capacity as employee and in furtherance of his employer’s business, notwithstanding that his actions constituted a gross abuse of his position.
The close connection, then, is a connection borne out, at least in part, in what the employee is purporting to do when he deliberately performs the wrongful act – is he purporting, however misguidedly, to act about his employer’s business or not? That said, the close connection does not factor in the employee’s personal motivations: Lord Toulson found at paragraph 48 that the fact that Mr Khan was obviously motivated by personal racism was not relevant to the analysis.
Unfortunately, Lord Toulson’s comment at paragraph 48 caused confusion. This has now been addressed by the Supreme Court in WM Morrison PLC v Various Claimants  UKSC 12. The employee in WM Morrison PLC – Mr Skelton – was instructed to collate employee payroll data and send it to KPMG in preparation for the employer’s annual external audit. However, Mr Skelton had previously been formally disciplined by the employer, and in an act of revenge designed to damage the employer, he uploaded the payroll data on to a file sharing website, reported the data breach to the press, and attempted to frame one of his colleagues. At first instance, and on appeal, the employer was found liable on the basis that Mr Skelton’s actions were within the field of activities assigned to him and there was a “seamless and continuous sequence” or “unbroken chain” of events between his collating the payroll data, as instructed, and his uploading it to the file sharing website. Significantly, the employer’s contention that the close connection was broken because Mr Skelton was specifically purporting to damage his employer, rather than further its business, was rejected on the basis of Lord Toulson’s finding at paragraph 48 of Mohamud that Mr Khan’s personal motivations were irrelevant.
The Supreme Court unanimously found that the employer was not liable. Lord Reed, adopting Lord Toulson’s analysis in Mohamud, found at paragraph 28 that, in talking of an unbroken sequence of events, Lord Toulson was not speaking merely of an unbroken temporal or causal sequence between various events, but of the unbroken or unchanging capacity in which Mr Khan was acting: the connection lay in the fact that, at all times, Mr Khan was purporting to act about his employer’s business, however misguided his actions. Lord Toulson’s comment that Mr Khan’s motivations were not relevant, in context, was nothing more than the observation that it was not relevant precisely why Mr Khan had chosen to become violent. Accordingly, whilst it was not relevant that Mr Skelton was motivated by revenge rather than anything else, the question whether there had been a break or change in the capacity in which he had been acting was crucial. At paragraph 47, Lord Reed found that there clearly had been a change in capacity: whereas Mr Skelton had been acting to further his employer’s business when he collated the payroll data, he had been acting to damage those interests when he uploaded it to the file sharing site. At that point he was therefore on a frolic of his own, rather than acting in his capacity as employee: his actions were thus not so closely connected to his employment as to make it just to hold the employer liable.
Mohamud and WM Morrison PLC are important for employers and claimants alike: just as it will not be enough for claimants merely to demonstrate an unbroken temporal or causal chain of events between the activities that comprise the employee’s employment and the wrongful act, so defences should address the question of whether the employee was still acting in his capacity as an employee, still acting to further the business of the employer, when he performed the wrongful act.
Article by Dr Thomas Richardson – Nothing in this article is intended to be legal advice. Readers may contact email@example.com should they wish formal legal advice on their particular circumstances.
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