Skelton, an employee of Morrison's Supermarkets, was disciplined by his employer. In revenge, he uploaded a file containing the personal data of 98,998 of Morrison's employees to a publicly accessible file-sharing website – an offence for which he was subsequently jailed for eight years. The claimants sued Morrison's Supermarkets for alleged breach of the statutory duty under section 4(4) of the Data Protection Act 1998 (misuse of private information and breach of confidence), on the basis that Morrison's was vicariously liable for Skelton's conduct (paragraph 9). The claimants were successful both at first instance and in the Court of Appeal; however, the Supreme Court reversed the decision of the Court of Appeal.

The Supreme Court held that Morrison's Supermarkets was not vicariously liable for Skelton's wrongdoing. Publishing the data online was not part of the ‘field of activities’ for which Morrison's employed him because it was not an act that he had been authorised to carry out. Nor did the fact of a temporal or causal connection alone meet the existing ‘close connection’ test enunciated by Lord Nicholls in Dubai Aluminium v Salaam [2002] UKHL 48: whether the wrongful acts were committed when ‘the employee was engaged, however misguidedly, in furthering his employer's business’ or whether ‘the employee is engaged solely in pursuing his own interests: on a “frolic of his own”, in the language of the time-honoured catch phrase’. The court distinguished the facts of the present case from those in the earlier decision of Mohamud v Wm Morrison Supermarkets Plc [2016] UKSC 11, in which an employee, Kahn, had assaulted a customer and Lord Toulson had found at paragraph 47 that there was a sufficiently close connection between Khan's course of employment and the assault, because 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.

In a situation where the employee was engaged solely in pursuing his or her own interests, the test would not be satisfied and the employer would not be held vicariously liable. The court concluded that, in the case before it, Skelton's actions were not sufficiently connected to those that he was authorised to carry out as a Morrisons employee as to give rise to vicarious liability. The fact that he had acted as he had done for purely personal reasons rather than on his employer's business was also ‘highly material’ (paragraph 31). In brief, it was ‘abundantly clear that Skelton was not engaged in furthering his employer's business when he committed the wrongdoing in question. On the contrary, he was pursuing a personal vendetta’ (paragraph 47). The appeal was allowed.

The test that the court applied in the present case was whether the acts committed by Skelton were ‘so closely connected’ with the acts that he was authorised to carry out by his employer that such acts could ‘fairly and properly be regarded as done’ by him acting in the ordinary course of his employment (paragraph 47). The issue of vicarious liability of religious bodies for abuse of various kinds – mostly sexual – has been a recurring theme in recent years: see, for example, FXF v Ampleforth Abbey Trustees [2020] EWHC 791 (QB) (in which vicarious liability was admitted but the court refused to set aside the primary limitation period), BXB v Watch Tower and Bible Tract Society of Pennsylvania & Anor [2020] EWHC 156 (QB), CW v Trustees of the Archdiocese of St Andrews and Edinburgh [2013] ScotCS CSOH 185 and The Catholic Child Welfare Society & Ors v Various Claimants & The Institute of the Brothers of the Christian Schools & Ors [2012] UKSC 56. So might the Supreme Court's ruling in Morrison result in a more restricted interpretation of vicarious liability in future cases of that nature? [Frank Cranmer]

Corrigendum. The case note on the judgment of Bullimore Ch in re All Saints, Kirk Hallam [2019] ECC Der 7 at (2020) 23 Ecc LJ 272 was mistakenly attributed to Eyre Ch. Apologies to both chancellors.