Vicarious Liability and Bifurcation: Reflections on WM Morrison Supermarkets v Various Claimants

Published date01 September 2020
Date01 September 2020

Over the last twenty years, the courts in England have elected to bring about a significant and ongoing expansion in the extent of an employer's responsibility where vicarious liability is concerned. This is true with respect to both the types of behaviour that can lead to the imposition of liability and the nature of the relationships that are relevant. Views will inevitably vary where the merits of these common law reforms are concerned but it is almost certainly the case that the prospects for claimants have never seemed more promising. Scotland has followed suit to a significant extent though a degree of caution has also been evident.1 Of late, in Barclays Bank v Various Claimants (“Barclays”)2 and WM Morrison Supermarkets plc v Various Claimants (“Morrison”),3 the Supreme Court has sought to provide a degree of clarification and retrenchment. Barclays restricts the types of relationship which are relevant while Morrison is concerned with the types of behaviour that an employer may be held responsible for. This note is principally concerned with Morrison and the thorny problem of wrongful conduct that is intended to cause harm.


In Morrison an employee (Skelton) who worked as an internal auditor published payroll data relating to almost 100,000 of the company's employees on the Internet. The trial judge found that his role included the handling and disclosing of data. Skelton had been disciplined by his employers and was disaffected. By way of revenge, he copied the payroll data onto a personal USB and put it on the Internet from home. The key issue for the Supreme Court was whether the employer was liable in damages to those of its current or former employees whose personal and confidential information has been misused by being disclosed on the web. The Court of Appeal had concluded that there was a sufficient connection between the position in which the tortfeasor was employed and the unlawful disclosure to hold that vicarious liability arose.4 The Supreme Court found for the employer: the “wrongful conduct was not so closely connected with acts which he was authorised to do that…it can fairly and properly be regarded as done by him while acting in the ordinary course of his employment”.5 Particularly damning for the claimants was the weight placed on the fact that Skelton had not been furthering the employer's interests but had been pursuing a personal vendetta.


The outcome in Morrison turned on the correct application of the “close connection” test. The Supreme Court adhered to the formulation set out in Lord Nicholls’ influential dictum in Dubai Aluminium v Salaam (Dubai):

[the court generally has to decide whether] … the wrongful conduct [was] so closely connected with acts the … employee was authorised to do that, for the purposes of the liability of [his] … employer, [it] … may fairly and properly be regarded as done by the [employee] while acting in the ordinary course of [his] … employment.6

Lord Reed, giving the sole speech in the Supreme Court, found that the Court of Appeal had misunderstood and misapplied that framework in four respects. First, he held that “the disclosure of the data on the Internet did not form part of Skelton's functions or field of activities…it was not an act which he was authorised to do…”.7 The term “field of activities” appears to be derived from the old Scottish case of Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co where it was used as a synonym for scope of employment.8 It was resurrected in Lister

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