Employment law
...acts that could be fairly regarded as done by an employee in the course of their employment.
went on to bring a number of claims to an ET, which included disability discrimination. When submitting her ET1 form at the commencement of her claim, she did not specifically identify what disability she claimed to have, simply that she was ‘somewhat obsessive’ about her work. The ET held a preliminary hearing in order to determine if the claimant was disabled and if her discrimination claim would have had any reasonable prospect of success. At this time, the claimant outlined that she had a ‘mixed personality’ disorder and sought to rely on this in her claim. She provided a report from her psychologist that had been produced some years prior, which seemed to have diagnosed this condition, alongside additional GP (general practitioner) reports. The ET ultimately ruled that she was not disabled for the purposes of the Equality Act 2010. Firstly, they questioned if she had an impairment at all, especially as there was no reference to it in her GP reports, and she had not actually been diagnosed with a recognised personality disorder. Despite this, they did also assess if her condition had an adverse effect on her, concluding that she had not provided any satisfactory evidence of this. She was not on any medication, and certain behaviours she exhibited were not sufficient proof. The claimant appealed to the EAT on numerous grounds, which included that the ET had erred by not considering if her condition constituted a mental impairment. However, the EAT dismissed her appeal, finding that the reasoning of the ET was correct and not perverse. The EAT first analysed the statute, outlining that the ET had first needed to identify an impairment and then determine if this impairment had a long-term, adverse effect on her day to day activities. From what the EAT could establish, the ET had first considered the psychologist report and concluded that an impairment hadn’t been fully established but had considered the
adverse effect element regardless. When claimants wish to proceed with a claim of disability discrimination, they will first need to establish that they have a disability for the purposes of the Equality Act 2010. Tribunals will approach this question by considering the evidence provided; if the claimant can demonstrate this, it will not matter if the employer was not satisfied that such an impairment was not present previously. To this end, employers should always consider situations where claimants are struggling in their role and if it may indicate that they do have a disability. WM Morrison Supermarkets plc v various claimants This case concerned an employee who held a grudge against Morrisons after being given a verbal warning for misconduct. He was provided access to the payroll data belonging to many of Morrisons’ staff so he could distribute it to external auditors. Instead, he copied the data onto a USB stick and posted it online and to several newspapers under a colleague’s name. Over 5,500 claimants brought action for compensation against Morrisons, claiming that they were exposed to the risk of identity theft and financial losses. Morrisons, who had spent £2.26 million dealing with the aftermath of this situation, contested the claim. The High Court found that the leak was not facilitated or authorised by Morrisons but still ruled that Morrisons were vicariously liable for the actions of its employee in leaking the data. In forming their decision, the High Court adopted the ‘broad and evaluative’ approach, finding sufficient connection between the employee’s position and his conduct
to give rise to vicarious liability. As such, the claimants could seek compensation awards for the ‘upset and distress’ caused to them by leaking their private data. Morrisons appealed the High Court’s decision, contending that the employee had not carried out the wrongful acts during his employment. However, the Court of Appeal highlighted that vicarious liability is not restricted to acts which occur when the employee is ‘on the job’ and thus determined that the act of sending employee data to a third party was within the field of activities assigned to the internal auditor. The appeal court also examined Morrisons’ argument that vicarious liability is not applicable where the perpetrator’s intention was to harm their employer, but they found that vicarious liability could be established in acts of deliberate wrongdoing. Therefore, the motive of the individual and to whom they were trying to cause harm was irrelevant. Morrisons appealed to the Supreme Court which upheld the appeal, finding that the previous courts had misunderstood how vicarious liability arises and had subsequently reached the wrong conclusions. The Supreme Court first outlined that the origins of the doctrine of vicarious liability were acts that could be fairly regarded as done by an employee in the course of their employment. They also held that motivation was important in this case as it determined whether the employee had been acting on his own or for Morrisons’ business. Although there was a temporal link between the employee’s role and his actions, the disclosure of this data had not formed part of his usual duties. This case suggests that employers will not always be held liable for the acts of employees under the doctrine of vicarious liability; however, this will be very fact sensitive. Whilst the specific motivation of the employee was considered important here, this may not always be the case. To this end, it is important that employers are prepared to respond quickly to situations of this nature as all three courts praised Morrisons for the steps they took following the data breach. n
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| Professional in Payroll, Pensions and Reward |
Issue 64 | October 2020
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