|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Ali v Luton Borough Council  EWHC 132 (QB) (27 January 2022)
Cite as:  IRLR 422,  EWHC 132 (QB)
[New search] [Printable PDF version] [Help]
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a Judge of the Queens Bench Division)
| ISMA ALI
|- and -
|LUTON BOROUGH COUNCIL
Jack Harding (instructed by Weightmans LLP) for the Defendant
Hearing dates: 17 and 18 January 2022
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 10:30am on 27 January 2022.
Richard Spearman Q.C.:
" in a case concerned with vicarious liability arising out of a relationship of employment, the court generally has to decide whether the wrongful conduct was so closely connected with acts the employee was authorised to do that, for the purposes of the liability of his employer, it may fairly and properly be regarded as done by the employee while acting in the ordinary course of his employment."
(1) Permission to view Liquid Logic records is not allocated on an individual basis, but rather is based on each employee's role.
(2) Contact centre workers are responsible for supervising contact for looked after children and can provide targeted parenting support. They also write notes on the contacts taking place and may provide contact reports if requested by the court.
(3) In order to fulfil their roles, contact centre workers require unrestricted access to the system, for a number of reasons:
First, they may be required to fulfil a contact request for a new file at short notice. If access were generally restricted, this would involve additional form filling, administrative support and delays. To gain access to a file if a general restriction were in place, a contact centre worker would need to request authorisation from their line manager, which would then need to be agreed by a Head of Service. The request would then go through to the IT department who have a turnaround or 3 to 5 days. The process of authorisation would therefore likely take around 6 days for each request. Restricted access would be highly impractical.
Second, a contact centre worker may overhear information about other individuals whilst supervising a contact. The worker may then need to quickly access the records to see if the individual mentioned had an open file and gain contact with their social worker if necessary. If access was restricted to a worker's own cases they would not be able to do this, which could cause potential safeguarding issues.
Third, when a colleague is off sick or cannot attend a meeting, a contact centre worker will need to cover that colleague's case. This will involve accessing a colleague's files at short notice in order to gain details of the case. If access was restricted to each worker's cases this would prevent effective management of cases.
(4) Ms Begum's level of access accorded with standard practice, for the above reasons.
(5) Individual records are only restricted by locking if a specific need to do so arises, as was the case once the breach which has led to the present claim came to light.
(6) The Social Care case management records within Liquid Logic are restricted in that only those people who work within Social Services can access the records. Some partner organisations, such as the NHS, may have access to the records but that access is equally controlled by appropriate security boundaries and permissions.
(7) Each individual who joins Social Services receives training on Liquid Logic. It is made clear within induction and training that access is audited and that they should only ever access records as required. There is no ambiguity at all in this regard.
(8) All contact centre workers are made aware that they should notify their line managers if they have a personal connection to any clients on the system. Their access to these cases is then restricted. Ms Begum would have been aware of the need to inform her line manager of her connection to the Claimant (i.e. by reason of her relationship with the Claimant's husband). If Ms Begum had followed the correct process, her access to the Claimant's files would have been restricted.
(9) Throughout her induction and on a regular basis Ms Begum would have received data protection and GDPR training. She did in fact receive data protection training on 20 April 2016 and GDPR training on 16 May 2018. The requirement to access files only as necessary is something which is reiterated regularly at service meetings and team meetings. The importance of not accessing case files unless necessary could also be expected to be covered at one-to-one supervision meetings. Such meetings take place around once a month for contact centre workers.
(10) Although in light of her role it was necessary for Ms Begum to have required elevated levels of access within Liquid Logic, as that would have been crucial to her work, in this instance she accessed records when she had no need to do so. That was an unlawful accessing of records. She clearly knew that what she was doing was wrong, as borne out by the fact that she pleaded guilty to a criminal offence.
(11) Liquid Logic is set up to operate by the Defendant in exactly the same way in other Local Authorities across the country. As far as is known, in other Local Authorities access is not restricted on a case by case or worker by worker basis once it is established that an individual within the role requires access to Liquid Logic. Other Local Authorities do not lock down the systems for Contact Assessment Workers.
(12) The Defendant could not have done anything differently or included anything within its systems to have prevented what Ms Begum did.
THE RELEVANT LEGAL PRINCIPLES
"The general principle set out by Lord Nicholls in Dubai Aluminium, like many other principles of the law of tort, has to be applied with regard to the circumstances of the case before the court and the assistance provided by previous court decisions. The words 'fairly and properly' are not, therefore, intended as an invitation to judges to decide cases according to their personal sense of justice, but require them to consider how the guidance derived from decided cases furnishes a solution to the case before the court. Judges should therefore identify from the decided cases the factors or principles which point towards or away from vicarious liability in the case before the court, and which explain why it should or should not be imposed. Following that approach, cases can be decided on a basis which is principled and consistent."
" The fallacy in that approach was explained by Lord Wilberforce in Kooragang Investments Pty Ltd v Richardson & Wrench Ltd  AC462, which concerned an employee who was authorised to carry out valuations, and negligently carried out a valuation without authority from his employers and not on their behalf. Lord Wilberforce rejected the argument that so long as the employee is doing acts of the same kind as those which it is within his authority to do, the employer is liable, and is not entitled to show that the employee had no authority to do them. He said at p 473:
the underlying principle remains that a servant, even while performing acts of the class which he was authorised, or employed, to do, may so clearly depart from the scope of his employment that his master will not be liable for his wrongful acts."
"37 The basic principle normally applicable to cases where an employee is engaged in an independent personal venture was explained in Joel v Morison (1834) 6 C&P501, which concerned a claim for personal injuries brought by a plaintiff who had been knocked down by a cart driven by the defendant's employee. Parke B said at p 503:
The master is only liable where the servant is acting in the course of his employment. If he was going out of his way, against his masters implied commands, when driving on his master's business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master's business, the master will not be liable.
38 More recently, the issue of liability for acts performed by an employee in the course of an independent venture of his own was considered by Lord Nicholls in Dubai Aluminium  2 AC 366, para 32:
A distinction is to be drawn between cases such as Hamlyn v John Houston & Co  1 KB 81, where the employee was engaged, however misguidedly, in furthering his employer's business, and cases where 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 matter stands differently when the employee is engaged only in furthering his own interests, as distinct from those of his employer. Then he acts as to be in effect a stranger in relation to his employer with respect to the act he has committed: see Isaacs J in Bugge v Brown (1919) 26 CLR 110, 118."
"All these examples illustrate the distinction drawn by Lord Nicholls at para 32 of Dubai Aluminium  2 AC 366 between 'cases where the employee was engaged, however misguidedly, in furthering his employer's business, and cases where 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.' In the present case, it is 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, seeking vengeance for the disciplinary proceedings some months earlier. In those circumstances, applying the test laid down by Lord Nicholls in Dubai Aluminium in the light of the circumstances of the case and the relevant precedents, Skelton's wrongful conduct was not so closely connected with acts which he was authorised to do that, for the purposes of Morrisons' liability to third parties, it can fairly and properly be regarded as done by him while acting in the ordinary course of his employment."
"The cases show that where an employer undertakes the care of a client's property and entrusts the task to an employee who steals the property, the employer is vicariously liable Experience shows that the risk of theft by an employee is inherent in a business which involves entrusting the custody of a customer's property to employees. But the theft must be committed by the very employee to whom the custody of the property is entrusted. He does more than make the most of an opportunity presented by the fact of his employment. He takes advantage of the position in which the employer has placed him to enable the purposes of the employer's business to be achieved. If the boys in the present case had been sacks of potatoes and the defendant, having been engaged to take care of them, had entrusted their care to one of its employees, it would have been vicariously liable for any criminal damage done to them by the employee in question, though not by any other employee. Given that the employer's liability does not arise from the law of bailment, it is not immediately apparent that it should make any difference that the victims were boys, that the wrongdoing took the form of sexual abuse, and that it was committed for the personal gratification of the employee."
" a firm of cleaners was held vicariously liable to a customer whose fur was stolen by one of its employees. The firm was a sub-bailee for reward, but the decision was not based on the firm's own failure to take care of the fur and deliver it upon termination of the bailment. It was held vicariously liable for the conversion of the fur by its employee. Diplock LJ said, at p. 737, that he based his decision:
"on the ground that the fur was stolen by the very servant whom the defendants as bailees for reward had employed to take care of it and clean it" (my emphasis).
Salmon LJ too, at p 740, was anxious to make it plain that the conclusion which he had reached depended on the fact that the thief was
"the servant through whom the defendants chose to discharge their duty to take reasonable care of the plaintiff's fur."
He added, at pp 740-741, that
"A bailee for reward is not answerable for a theft by any of his servants but only for a theft by such of them as are deputed by him to discharge some part of his duty of taking reasonable care. A theft by any servant who is not employed to do anything in relation to the goods bailed is entirely outside the scope of his employment and cannot make the master liable."
The employee's position gave him the opportunity to steal the fur, but as Diplock LJ was at pains to make clear, at p. 737, this was not enough to make his employer liable. What brought the theft within the scope of his employment and made the firm liable was that in the course of its business the firm had entrusted him with the care of the fur, and he stole it while it was in his custody as an employee of the firm."
"41. Reviewing the jurisprudence, and considering the policy issues involved, I conclude that in determining whether an employer is vicariously liable for an employee's unauthorized, intentional wrong in cases where precedent is inconclusive, courts should be guided by the following principles:
(1) They should openly confront the question of whether liability should lie against the employer, rather than obscuring the decision beneath semantic discussions of 'scope of employment' and 'mode of conduct'.
(2) The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer's desires.
(3) In determining the sufficiency of the connection between the employer's creation or enhancement of the risk and the wrong complained of, subsidiary factors may be considered. When related to intentional torts, the relevant facts may include, but are not limited to the following:
(a) the opportunity that the enterprise afforded the employee to abuse his or her power;
(b) the extent to which the wrongful act may have furthered the employer's aims (and hence be more likely to have been committed by the employee);
(c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer's enterprise;
(d) the extent of power conferred on the employee in relation to the victim;
(e) the vulnerability of potential victims to wrongful exercise of the employee's power.
42. Applying these general considerations to sexual abuse by employees, there must be a strong connection between what the employer was asking the employee to do (the risk created by the employer's enterprise) and the wrongful act. It must be possible to say that the employer significantly increased the risk of the harm by putting the employee in his or her position and requiring him to perform the assigned tasks. an incidental or random attack by an employee that merely happens to take place on the employer's premises during the working hours will scarcely justify holding the employer liable. Such an attack is unlikely to be related to the business the employer is conducting or what the employee was asked to do and, hence, to any risk that was created. Nor is the imposition of liability likely to have a significant deterrent effect; short of closing the premises or discharging all employees, little can be done to avoid the random wrong. Nor is foreseeability of harm used in negligence law the test. What is required is a material increase in the risk as a consequence of the employer's enterprise and the duties he entrusted to the employee, mindful of the policies behind vicarious liability."
(1) In a case concerned with vicarious liability arising out of a relationship of employment, the test is whether the wrongful conduct was so closely connected with acts the employee was authorised to do that, for the purposes of the liability of his employer, it may fairly and properly be regarded as done by the employee while acting in the ordinary course of his employment.
(2) Cases involving sexual abuse have followed a different approach, and focus on different factors, such as misuse or abuse of authority over the victims, over whom the perpetrator has some element of responsibility or trust.
(3) Applying the test in (1) above, the critical distinction is between cases where, on the one hand, the employee was engaged, however misguidedly, in furthering his employer's business, and cases where the employee is engaged solely in pursuing his own interests: on a 'frolic of his own'.
(4) The motive of the tortfeasor is a highly relevant factor. If they are acting for 'personal' reasons this is a strong indication that they are not purporting, even misguidedly, to further their employer's business.
(5) The fact that employment provided a tortfeasor with the opportunity (for example, in terms of access to the information) to commit the wrongful act is never sufficient to establish vicarious liability. The focus should not be on the fact that there is close temporal or causal connection between the work and the wrongdoing. It will almost always be true that the wrongdoing has occurred against the background of the employment and whilst the employee is 'at work'. However, it is a 'fallacy' to think that simply because the wrongdoing occurs whilst the employee is performing acts of 'the class of which he was authorised', it is thereby sufficiently closely connected to it. If the employee acts for personal reasons, rather than purporting to further the employee's business, it may well be the case that they have so clearly departed from the scope of their employment that the employer will not be vicariously liable.
"The doctrine of vicarious liability is necessary for the reasonable protection of innocent third parties. But out of fairness to employers, limits have to be set to it. That is, perhaps, more particularly evident in a case such as the present where the Post Office is sought to be made liable for the wilful wrongdoing of Edwards, which the Post Office in no way authorised. In my judgment, what Edwards did was an act which cannot be regarded as being merely an unauthorised way of performing the duties for which he was employed, namely, to sort and deliver mail. Out of personal malevolence to the addressees (or one of them) he wrote an offensive message on the envelope. That was not the performance of any duty for which he was employed. His employment provided the opportunity for his misconduct, but the misconduct formed no part of the performance of his duties and was in no way directed to the performance of those duties. It was just a piece of spite on the spur of the moment. He was, of course, authorised for postal purposes to write upon envelopes, but what he wrote, and the purpose of what he wrote, had no connection with the performance of his duties."
" [Counsel] submitted that as the "job upon which Mr Edwards was engaged" at the material time was that of sorting mail, his act in writing on the envelope albeit not merely unauthorised but expressly prohibited was within the scope of that employment. As I understand the argument, it was to the effect that the time spent by Mr Edwards in writing his comments would have been so short, such a minor interruption in the overall legitimate process of sorting the mail, that it should all be treated as part of one transaction: and that to differentiate it, in this respect, from actions that immediately preceded and followed it, would be unrealistic and amount to the very process of dissection that Diplock LJ was discouraging [i.e. in Ilkiw v Samuels & Ors. (1963) 1 WLR 991 at 1004]. In my judgment, however, such an argument demonstrates the danger of taking passages out of context, and begs the question: whether Mr Edwards act in writing on that envelope, however short the time that it took, was in fact part of the process of sorting the mail and was within the scope of his employment.
In the event, in my judgment, the Tribunal's finding that to write that offensive message on the envelope addressed to the plaintiffs was no part of the work that Mr Edwards was employed to do is not open to criticism; on the contrary, in my view it was plainly right. On the facts, indeed, to have found otherwise would have been to import the proposition which Heasmans [i.e. Heasmans v Clarity Cleaning Co. Ltd, The Times, 23 January 1987 in which it was held by the Court of Appeal that a cleaning contractor engaged to clean offices was not vicariously liable for the tort of its employee, whose duties included cleaning the office telephones, in dishonestly using the telephones for his own purposes]; and the Keppel Bus Co. Ltd. [i.e. Keppel Bus Co. Ltd. v. Sa'ad bin Ahmad (1974) 1 WLR 1082, in which the employers were held not to be liable for a violent assault by a bus conductor upon a passenger in his bus] cases (inter alia) have shown to be wrong."
(a) The Defendant did afford Ms Begum the opportunity to abuse her position. However, that is almost always the case in any instance of employee abuse of position; it is not sufficient by itself to give rise to vicarious liability; and, on the unchallenged evidence before me, the Defendant could not have done otherwise.
(b) Ms Begum's wrongful acts did not in any way further the employer's aims. They were not more likely to have been committed by the employee for this reason.
(c) Ms Begum's wrongful acts were not related to friction, confrontation or intimacy inherent in the Defendant's enterprise. This factor seems to me most readily applicable in cases of physical interaction between employees or interaction between the individual tortfeasor and a third party or third parties, such as occurs in (but may not be limited to) the sexual abuse cases, and this was not such a case.
(d) Like considerations apply to the question of the extent of power conferred on the employee in relation to the victim. This seems to me most readily applicable in cases involving (typically physical) interaction with the victim. If and to the extent that it applies to the employer permitting the employee to access information relating to a victim, the Defendant did not confer power on Ms Begum to access the Claimant's information: Ms Begum took advantage of the opportunity which the Defendant's working practices necessarily afforded to her to do that improperly, surreptitiously and for her own purposes, which had nothing to do with any role or authority which the Defendant assigned to her vis-ΰ-vis the Claimant.
(e) It seems to me that the vulnerability of potential victims to wrongful exercise of the employee's power could be relevant with regard to someone like Ms Begum if she was put in charge of dealing with a particular service user, perhaps in the context of arranging contact. I am prepared to assume that such service users, or at least some of them, may well be vulnerable in this way. However, Ms Begum was never put in charge of any aspect of the affairs of the Claimant (or the children), or indeed information relating to them. I do not consider that this factor assists the Claimant.