This is an interesting case that Zurich fought recently, thought you legal eagles and claims specialists would like a gander at it;
In Ali v Luton Borough Council [2022] an employee worked for the local authority’s social services department as a Contact Assessment Worker. Her role was to supervise and assess contact sessions between children and adults in circumstances where, under the relevant legislation (principally, the Children Act 1989) the Defendant was under a legal duty to safeguard the child’s emotional or physical wellbeing.
The claimant made a complaint to Bedfordshire Police about incidents of domestic abuse by her then husband, with whom she had two children. The complaint was shared by the police with the local authority because of potential child safeguarding concerns.
As part of her work as a Contact Assessment Worker, she had access to the social services records held on the defendant’s computer system. She was not, however, working on any files relating to the claimant or her children at any time. Whilst she was at work, she accessed a number of records relating to the claimant’s police complaint about her ex-husband. It would appear that she did so at the behest of the husband, with whom she was in a relationship. It is likely that she took photographs of the documents using a mobile phone and printed a document containing the information. The images/documents were sent or shown to the husband, who told others within the community. The claimant became concerned for her safety and alleged that she suffered distress and anxiety.
She was arrested and charged with the offence of unauthorised access to computer material, contrary to section 1 of the Computer Misuse Act 1990. She pleaded guilty and was sentenced to three months imprisonment, suspended for 12 months. The sentencing judge referred to and endorsed the comments of her then line manager that her conduct was “deliberate, planned and goes against every professional code of conduct we adhere to and…put the family at risk of harm”.
VICARIOUS LIABILITY?
The claimant, Ms Ali, brought proceedings against the defendant alleging that it was vicariously liable for her actions, which it was common ground had breached the claimant’s rights under the General Data Protection Regulations at common law and under the Human Rights Act 1998.
Although she gained the opportunity to access and process data relating to the claimant and her children by reason of the unrestricted access to the computer system which she needed in order to perform her role as a contact centre worker, it formed no part of any work which she was engaged by the defendant to do to access or process those particular records.
The court found that, in doing what she did, engaged solely in pursuing her own agenda, namely divulging information to the claimant’s husband, with whom she had some form of relationship. The fact that there was a safeguarding element to her job only served to underline how plainly she was not engaged in furthering her employer’s business. The disclosure of the data to the husband was to the detriment of the claimant and children, whose safety and interests as users of the defendant’s services it formed part of her core duties to further and protect. She was, on any analysis, on a frolic of her own.
This is a clear and forthright application that cases of vicarious liability cannot be decided by judges according to their personal sense of justice, so claims can be decided on a basis which is principled and consistent. It is submitted that Ali represents a robust expression of this in practice and is a strong vindication for an employer who was in no way responsible for the criminal conduct of a rogue employee.
This claim was handled within Zurich’s Specialist Claims Team by Victoria Pontin, and latterly Jonathan Williams. The team are highly experienced in matters concerning vicarious liability and data protection. The decision to defend our customers interests was made at an early stage and followed through to trial, despite pressure to settle on an economic basis at key stages of the claim.
Special thanks to Andrew Clark of Weightmans, and Jack Harding of 1 Chancery Lane for the successful defence.
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