Limits of Employer Liability for Employee Misconduct: A Post-morrisons Analysis of Vicarious Liability in Tort Law

Abstract

This study critically compares and overviews of employer secondary liability in English common law, paying particular attention to recent judgments of the UK Supreme Court in Morrisons [2020] and Barclays [2020]. Rather than simply summarising these cases, the study seeks to contextualise the increasingly restrictive approach taken by UK courts since Morrisons within the international landscape of vicarious liability law, comparing the UK approach with Canada statutory "enterprise risk theory" (developed in Bazley v Curry) and Australia strict liability "role approach" (developed in Prince Alfred College). In highlighting these contrasting international developments, the study respond to a shared judicial concern across multiple jurisdictions surrounding expansive vicarious liability for organisations whose employees intentionally cause harm to others, including cyber liability for breaching confidential data. The study concludes that there is a structural oversight in academic literature around tort law; there is no operational "safe harbour" for organisations that comply with existing laws. Legislative regimes, such as the Health and Safety at Work etc. Act 1974 explicitly allow for credits to operators who can demonstrate effective risk prevention measures, however civil law liability for the acts of others is "blind" to organisational due diligence. As a solution to rebalance this area of law the study suggest updating the orthodox "close connection" test by the introduction of a model common law due diligence defence for litigants who can prove they have implemented leading edge compliance programmes.