Search

How can we help?

Icon

Employers could be vicariously liable for privacy breaches

The recent High Court decision of Axon v Ministry of Defence and News Group Newspapers Ltd suggests that employers can be held vicariously liable for their employees’ breaches of confidence and privacy.

The Claimant was a Commanding Officer in the Royal Navy.  He was relieved from his post and reassigned to a shore based location when the Ministry of Defence (MOD) found him guilty of bullying junior officers.  An employee of the MOD leaked this information to The Sun newspaper who published an article on this.  On discovering this some years later, the Claimant pursued claims for breach of confidence and breach of privacy (Article 8 ECHR) against the MOD asserting that it was vicariously liable for its employee’s acts.

The High Court determined that, on the facts of the case, the Claimant did not have a reasonable expectation of privacy. In reaching this decision it stated that the Claimant was “discharging a very public function, was in charge of a warship, and had, by his offensive conduct, imperilled the fighting effectiveness of his ship”.  Further, whilst the employee had a duty to the Crown and the MOD to refrain from disclosing confidential information to outsiders, she did not owe this duty to the Claimant. Consequently the Claimant’s claims failed.

Monica Atwal

Managing Partner

View profile

+44 118 960 4605

Chambers and Partners

The Clarkslegal team are commercial and good to work with. They get what our business needs and tell me what I need to hear.

Interestingly, the Judge went on to comment on vicarious liability and concluded that the MOD could have been held liable had the Claimant’s claims been valid.  This was on the basis that the employee’s wrongdoing had a sufficiently close connection to her employment.  The employee’s wrongdoing was based on information obtained during the course of her employment, her employment was the only reason she was privy to that information and she had signed a confidentiality agreement.  The Judge commented that, due to the sensitive information she was privy to, it was appropriate to view her job as including the task to preserve confidentiality.

Although only commented on obiter and, therefore, not binding, the Judge’s comments serve as an important reminder for employers to ensure that all employees are aware of the seriousness of confidentiality and privacy beaches.  An employer may escape the jaws of vicarious liability if it can demonstrate that it took all reasonable steps to prevent the wrongdoing occurring.  Water tight data protection and privacy policies are, therefore, an essential starting point to minimise the risks of vicarious liability.

About this article

Disclaimer

This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

Monica Atwal

Managing Partner

View profile

+44 118 960 4605

About this article

Read, listen and watch our latest insights

art
  • 16 May 2024
  • Immigration

What Employers need to know about Biometric Residence Permits

Biometric Residence Permits (BRPs) are biometric immigration documents that are issued to non-EEA nationals and EEA nationals, who have been granted permission to stay in the UK.

art
  • 14 May 2024

Clarkslegal’s London team moves to new Chancery Lane office

The London office of Clarkslegal has relocated to Chancery House, on Chancery Lane. The staff is enthusiastic about the relocation because Chancery Lane has a longstanding association with the legal profession in London.

art
  • 10 May 2024
  • Employment

New duty on employers to prevent sexual harassment – coming October 2024

The Worker Protection (Amendment of Equality Act 2010) Act 2023 is due to come into force in October 2024.

art
  • 09 May 2024
  • Employment

Labour Party Employment Law Proposals – Promises of further consultations and a softer approach

The Prime Minister recently announced a raft of changes, to be implemented in the next parliament, aimed at reducing the number of people who are economically inactive due to illness.

art
  • 09 May 2024
  • Corporate and M&A

Navigating corporate transparency: ECCTA reforms series – part 1

The Economic Crime and Corporate Transparency Act 2023 (ECCTA) received Royal Assent in October 2023 and marked a pivotal moment in corporate governance and transparency.

art
  • 07 May 2024
  • Employment

Changes to TUPE rules from 1 July 2024

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’) aim to safeguard employees’ rights on the transfer of a business or on the change of a service.