Vicarious liability and the rogue employee
- By James Ferguson
The Supreme Court in London recently considered the liability of an employer for the malicious acts of a rogue employee.
By way of background, the Appellant (‘Morrisons’) employed an individual (whom we shall refer to as ‘Rogue One’) as an internal auditor. In 2013, he was subject to their internal disciplinary procedures resulting in a verbal warning. Rogue One held a grudge against his employers which he manifested in publishing online and leaking to newspapers the personal data of their entire workforce. He was subsequently prosecuted and jailed for his actions.
A number of those affected by the data breach sued Morrisons.
The idea of a ‘master’ being vicariously liable for the acts of his ‘servant’
committed ‘in the course of his employment’ is nothing new. For the best part of the last century, the formula for vicarious liability was as expressed by Sir John Salmond KC, the English-born New Zealand jurist, in 1907:
a master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master …[b]ut a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes—although improper modes—of doing them.
At trial, it was held that Morrisons was vicariously liable for the malicious actions of Rogue One. This was upheld by the Court of Appeal. The Supreme Court, allowing Morrisons’ appeal, restated the law on vicarious liability as summarised in Mohamud v. Morrisons (2016).
Applied to the instant case, the actions of the employee did not fall within his ‘field of activities’ nor could he be said to be acting on Morrisons’ behalf.
This judgement provides welcome clarity to employers on the potential scope of their vicarious liability.
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