The boundaries of vicarious liability had been expanding in recent years, but in April a pair of decisions from the Supreme Court indicated that there may now be a retrenchment.
The Barclays case concerned Dr Bates, a self-employed practitioner who undertook unchaperoned medical examinations at his home and provided a medical report which was a prerequisite for each claimant to be employed by the bank. The claimants sued Barclays for damages for a very large number of sexual assaults allegedly committed by Dr Bates.
In the Morrisons case, an employee, Andrew Skelton, became very disaffected after being disciplined for minor misconduct and in response waged a criminal campaign of vengeance against his employer, sending workforce payroll data to the newspapers. The claimants were some of the affected employees and they brought proceedings against Morrisons for damages.
Although the claimants had succeeded in both cases in the Court of Appeal, the Supreme Court held that:
- As Dr Bates was not at any time an employee of the Bank, was paid a fee for each report (rather than a retainer), was free to refuse to do an examination and was in business on his own, he was not an employee and nor was he close to being an employee of the Bank. Therefore, Barclays was not vicariously liable.
- The necessary ‘close connection’ to the work that Mr Skelton had been employed to do did not exist. Just because his job gave him the opportunity to commit these acts, this was not enough. His conduct, done for highly personal reasons, was outside the scope of his employment: in common parlance, he went off on a ‘frolic of his own’.