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This article discusses the supreme court's judgment in the case of wm morrisons supermarkets plc v various claimants [2020] uksc 12, which addresses the issue of vicarious liability in the context of data breaches. The facts of the case, the trial and appeal decisions, and the court's findings, which may have implications for employers and their liability for employees' wrongdoing. The article also mentions the related case of barclays bank plc v various claimants [2020] uksc 13.
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WM Morrisons Supermarkets plc v Various Claimants ā Understanding the Misunderstandings about Vicarious Liability On 1st^ April 2020 the Supreme Court handed down judgment in the case of WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12. The conclusion of the Supreme Court is a potential narrowing of the law of vicarious liability, and at first glance appears difficult to reconcile with the earlier case of Mohamud v WM Morrison Supermarkets plc [2016] UKSC
11. Is this a row-back from the case of Mohamud or simply a clarification of how that case has been misunderstood as the Court suggests? This article briefly summarises the judgment, focussing on the issue of vicarious liability. The facts and the decisions of the Courts below In early 2014 a disgruntled employee of Morrisons, Andrew Skelton, uploaded a file containing the payroll details of the supermarket chainās entire workforce to a publicly accessible file- sharing website. He then sent this file to various national newspapers, claiming to be a concerned member of the public who had found it online. Skelton had acquired the payroll details some months prior to these events. As part of his role on Morrisonsā internal audit team, he had previously been responsible for sending the workforce payroll data to external auditors. He chose to make the data public to wage a personal vendetta against his employer, as he had been subject to minor disciplinary proceedings. Skelton was prosecuted for his actions and sentenced to eight yearsā imprisonment. Over 9,000 employees brought proceedings against Morrisons personally and on the basis of its vicarious liability for Skeltonās acts. The claims were for breach of statutory duty under the Data Protection Act 1998 (āDPAā), misuse of private information, and breach of confidence. A liability-only trial was ordered for ten lead Claimants. The trial Judge determined that Morrisons was vicariously liable for Skeltonās acts. He concluded that the five factors for vicarious liability (as set out in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 ) were all present. The trial Judge applied what he understood to be the reasoning of Lord Toulson in Mohamud. The Court of Appeal upheld the judgment of the trial Judge and referred particularly to the āseamless and continuous sequence of eventsā that led to the data disclosure and the irrelevance of Skeltonās motive, again applying the case of Mohamud. What did the Supreme Court conclude? Lord Reed gave the lead judgment, allowing the appeal and finding in favour of Morrisons. At the outset the Court highlighted that they viewed this case as an opportunity to address the āmisunderstandingsā which had arisen since its decision in the case of Mohamud. Specifically, the Court found that the trial Judge and the Court of Appeal had misunderstood the case of Mohamud and the application of its principles in four relevant respects of particular importance: 1. The disclosure of the data on the internet did not form part of Skeltonās function or āfield of activitiesā in the sense in which those words were used by Lord Toulson in Mohamud. The disclosure was not an act which Skelton was authorised to do. 2. Although the five factors in Various Claimants v Catholic Child Welfare Society were present, those factors are concerned with the distinct question of whether, in the case of wrongdoing committed by someone who was not an employee , the relationship between the wrongdoer and the defendant was sufficiently akin to employment so as to be one to which the doctrine of vicarious liability should apply. The five factors are
not concerned with the question of whether the wrongdoing in question was so connected with the employment that vicarious liability ought to be imposed.