Who Should Pay? And, What is Fairness?
I have written Blogs earlier, about problems which can be caused by rogue employees – by co-incidence they both involved the huge Supermarket Company WM Morrison Supermarkets PLC.
In the first case, Morrisons had to pay out compensation because a petrol pump attendant [that shows my age – let’s say, a man who worked at the till of a petrol station] went mad – or maybe he had been mad for years, but he suddenly let it show and attached a customer first with his fists, knocked him down and then kicked him.
Here is my Blog about that – Link Here-
The reason Morrisons had to pay compensation is because in England there is the concept of “vicarious liability”. An employer is liable to pay compensation for the consequences of civil wrongs “Torts” committed by its employees when they are working.
The thinking is that employers should recruit proper responsible people, and also supervise their actions sufficiently closely so as to ensure they behave well.
For example. if there is a bully in the office, harming co-workers lives and their mental health then an employer is liable to compensate for the harm done and also if the behaviour is not brought to an end.
When a wrongdoing is done by someone obviously at work, vicarious liability is relatively easy to identify.
But the law is imprecise at the edges. What if this petrol pump man had attacked a random person whilst on a bus on his way to work? Or whilst on holiday in Spain – paid for out of savings from earnings at work. Presumably, no vicarious liability.
What if a lorry driver carelessly runs you over, whilst making a stop at an ATM, half a mile from the route his employer had set him? Vicarious liability.
What if a lorry driver scheduled to drive from Leeds to London, carelessly runs you over at an ATM in Newcastle where he is skiving off to visit his girlfriend? Not Vicarious liability. He is too far removed from what he is employed to do, he is on a “frolic of his own” as the law calls it.
Another facet of the law surrounding the concept of vicarious liability, is that the motive of the employee is irrelevant. So if a bully wants to see fear, or a mad petrol kiosk attendant wants to see blood, or a lorry driver is simply careless, – doesn’t matter.
Say it again – motive doesn’t matter.
The second time Morrisons have been enmeshed in the complications of Vicarious Liability, is the one I blogged about here – Link here.
Quick summary:- Andrew Skelton worked for Morrisons as an internal auditor. He had access to personal data including bank details, NI numbers, phone numbers and possibly a lot more, about the employees of Morrisons. At least 5500 of them are represented in the Court claims but there may be over 100,000 of them according to some reports.
His problem was that Morrisons didn’t like him using their premises and computers to run his own “e-commerce” business when he was being paid to work for Morrisons.
I know – These prickly employers eh?
Having got into a lather about this sheer totalitarianism – the outdated mindset of Morrisons that their employees ought to spend their time at work attending solely to the affairs of Morrisons – he cooked up a cunning plan.
He downloaded all of the sensitive data to which he had access, and put it onto memory stick and took it home
He waited several weeks out of caution then he published all of the data online.
He is in prison now serving eight years. Good.
And Morrisons have been found liable to pay compensation to his victims. Vicarious Liability.
But the case has now been taken to the Court of Appeal by Morrisons. The argument they put forward is that this case is a very unusual one, because Skelton was primarily acting not in order to hurt the employees of Morrisons, who might suffer distress and worry and also perhaps financial loss to computer hackers – but only in order to hurt Morrisons and its business.
Skelton knew about the law of vicarious liability. He knew that Morrisons would be found liable for the consequences of this actions and he acted in order to maximise the financial loss to Morrisons.
So his crime was intended to hurt Morrison, and it has certainly worried one of the Judges of the previous hearing that the Court itself is being required find Morrisons liable vicariously and thereby, to do the criminal’s dirty work.
The spectre has arisen of the possibility of a new kind of financial terrorism.
At the latest Appeal hearing the Court has declined to change the basic rule that “Motive does not matter”. Here is a link to the hearing transcript – Link Here-.
Morrisons will have one more go I expect, an appeal to the Supreme Court.
What does the team think? The law is I suppose an attempt to structure acceptable behaviours. It is not true to say that the aim of jurisprudence is to make life fair for everyone, but certainly fairness comes into it, if only because manifest “unfairness” might be hard to define but easier to recognise, and ultimately can lead to public dissent, rioting and revolution.
Not that one person’s fairness is not another one’s unfairness. Certainly Morrisons feel it is unfair, that they may be facing pay-outs of millions for the behaviour of a criminal whose only aim was to make them pay out millions.
But the people whose data, which should have been kept safe, has been published openly onto the internet, will also feel it is unfair if Morrisons’ Appeal is successful, because that will mean that the only redress will be whatever they can get out of Skelton, who is in jail. So good luck with suing him for millions he presumably hasn’t got.
It seems to me that breaches of GDPR need to be taken out of the scope of the laws of vicarious liability.
If Parliament thinks that Morrisons have actually done something wrong [and remember, the Courts have enquired fully and don’t think it has] then Parliament should define that culpable behaviour.
Seems to me also that the whole concept of vicarious liability was originally to enable co-workers or the public to get compensation when they otherwise would not have been able to, in the context of a world which was much simpler and when the idea that a malicious keystroke on a computer could have consequences of the sort now facing Morrisons, was the stuff of science fiction.
But it is not science fiction now, and in my view we really don’t want to encourage economic terrorists whether idiots like Skelton or more ideologically driven idiots or enemies to get into jobs where they can bring down our country’s biggest economic engines, now do we?
That’s a bit of a gloomy thought. Cheer up – Link Here-
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