Kenya: Employer Liability For Misuse Of Private Information By An Employee

Last Updated: 21 June 2019
Article by Sonal Sejpal and Rosa Nduati-Mutero

Case Study: Various Claimants (Respondents) v WM Morrison Supermarkets Plc (Appellant) [2018] EWCA Civ 2339

The Court of Appeal in the United Kingdom recently delivered a judgment finding WM Morrison Supermarkets (Morrisons) vicariously liable for the misuse of private information by one of its employees, Mr Andrew Skelton.

Andrew was a senior IT internal auditor at Morrisons, a position in which he was privy to substantial confidential information relating to his co-workers. In January 2014, Andrew posted a file containing personal information, including payroll data relating to 99,998 employees of the company on a file-sharing website, from where it was copied to other websites on the internet. The data included names, addresses, phone numbers, national insurance numbers and bank account details of all the employees. Anonymously, he further shared the same information with three local newspapers purporting to be concerned that the information was available on the internet.

The Case for Vicarious Liability

Vicarious liability is the legal responsibility imposed on an employer for a tort committed by an employee in the course of their employment. In order for vicarious liability to be imposed, it must be proven to the court that:

  1. a tort has been committed;
  2. the person who committed the tort was an employee of the company; and
  3. the tort was committed in the course of employment.

After Morrisons discovered that Andrew was behind the leak, he was arrested and charged with fraud, an offence punishable under the UK Data Protection Act, 1998 (UK DPA). He was then convicted and sentenced to eight years in prison. Proceedings for damages, misuse of private information, breach of confidence and breach of duty under the UK DPA (the Tortious Acts) as well as for vicarious liability were instituted against Morrisons by over 5,000 of its employees whose data was published on the basis that it was responsible for Andrew's actions.

The High Court found that there was a sufficient connection between Andrew's position as an employee and his wrongful conduct to justify the company's vicarious liability for the breach. In doing so, the High Court took a lenient approach towards the strict interpretation of "in the course of employment", even though the tort was committed by Andrew at home and strictly, not "in the course of employment" and decided to adopt the 'close connection test'. It weighed the social interest in protecting employees, against the undue burden that may be placed on employers who may, as a result of this decision, be liable for all manner of their employees' actions outside of work premises. In this instance a close connection was established between Andrew and Morrisons and Morrisons was thus held vicariously liable.

Morrisons appealed the decision of the High Court on two grounds:

  1. The UK DPA is silent on the applicability of vicarious liability and therefore excluded it as a potential claim by the aggrieved employees and that Andrew, and not the company, was the 'data controller' (the person who determines the purposes and the manner in which any personal data is to be processed); and
  2. In terms of the elements required to prove Andrew's Tortious Acts, the 'close connection test' was not satisfied since the acts that caused the breach were committed by Andrew at home using his own computer and not with the company's computer or on the company's premises.

The Court of Appeal, in agreeing with the decision of the High Court made the following findings:

The vicarious liability of an employer for the misuse of private information and breach of confidence by an employee is not excluded in the UK DPA;

While Andrew was the data controller, this did not exclude the company from liability for Andrew's breach of statutory duty under the UK DPA with respect to the personal information;

The close connection test was satisfied as there was a seamless and continuous sequence of events that led to the employee's tortious acts, which were within the field of activities assigned to him by the company; and

The company fell short of its duty under the UK DPA to take appropriate organisational measures to guard against unlawful disclosure and data loss.

The company fell short of its duty under the UK DPA to take appropriate organisational measures to guard against unlawful disclosure and dataKenya does not currently have any specific legislation that collectively governs data protection.

In addition to Article 31 of the Constitution, which enshrines every citizen's right to privacy, the current laws regulating the collection and use of personal data in Kenya include the Access to Information Act, the Kenya Information and Communications Act and the Consumer Protection Act.

The Data Protection Bill (the Bill), which seeks to regulate the use and protection of personal data, was tabled in parliament in 2018 and is currently at the public participation stage. If the Bill is passed into law, it will apply to any person who collects or processes any personal data, except for public bodies processing personal data for the purpose of national security or the prevention and combating of money laundering activities.

The Bill contains similar provisions to the UK DPA and does not exclude the vicarious liability of an employer in the event of misuse of private information and for breach of confidence by an employee, irrespective of whether the employee was the data controller or not. Therefore, in the event of a data breach and misuse of private information by an employee, it is highly likely that a Kenyan court will hold a similar view to that of the UK Court of Appeal and find an employer vicariously liable for the misdeeds of its employee.


This case serves as a caution to Kenyan employers as the decisions of courts in the UK have persuasive authority in Kenya. Should an employer be found culpable for the unlawful disclosure of personal data by its employees, the Bill proposes a penalty of a fine of up to KES 5 million (approx. USD 5,000).

Employers should, therefore, take steps to ensure that they are not exposed to liability as a result of the misuse of personal data by errant employees. Appropriate measures can include undertaking awareness training, continuous monitoring of employee activity and log analysis, risk assessments and independent reviews.

Editor's Note

Proposed amendments to the Employment Act have been put forward and two Employment Act Amendment Bills have so far been published for public comment. A&K will be submitting its comments on the Bills which we will share in the coming weeks through our legal alert updates, highlighting some of the potential impacts of these Bills on employment legislation in Kenya.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions