The “Close Connection” Test in Practice

The close connection test soon gained prominence and was applied across a wide variety of situations. In
Mohamud v WM Morrison Supermarkets Plc [2016] UKSC 11; [2016] A.C. 677; the Supreme Court provided
further guidance on how the test should be applied. In Mohamud, an employee of the defendant racially abused
the claimant while working at the defendant’s petrol station. The employee then went on to assault the claimant.
At first instance and in the Court of Appeal it was found that even under the close connection test this was not in
the course of the employee’s employment; but the Supreme Court disagreed. They explained that the close
connection test should be approached in two parts. Firstly, the court should ascertain the “field of activities” of the
employee; then they should look at whether there was a sufficient connection between these activities and the
wrongdoing. Here, the employee’s job involved dealing with customers. Therefore, there was a sufficiently close
connection between that activity and assaulting a customer.

In the same year, the Court of Appeal used the “close connection” test in relation to negligence (i.e. extending it
beyond intentional torts) in Fletcher v Chancery Supplies Ltd [2016] EWCA Civ 1112.

Most recently, WM Morrison Supermarkets Plc v Various Claimants [2020] UKSC 12 [2020] 2 W.L.R. 941 has
given the Supreme Court another opportunity to clarify the test. Here, the employee in question (it is mere
coincidence that the employee also worked for WM Morrison!) had leaked payroll data in an attempt to “frame”
another employee. The Court of Appeal had found the defendant vicariously liable on the basis that there was a
causal link between the employee’s activities (processing payroll data) and the wrongdoing (making that data
available on a public website). The Supreme Court held that this was a misinterpretation of the close connection
test. The point in Mohamud was not that the events were causally connected but that the wrongdoing was a part
of the employee’s duties – he was employed to deal with customers and he was dealing with that customer, albeit
by assaulting him. Whereas in the present case, the employee was acting for entirely personal reasons and was
not closely connected to his actual job. Ironically, the Supreme Court’s judgment seems in many ways to bring
the law back towards the Salmond test, in that in Mohamud the employee was doing an authorised act in an
unauthorised way, while in Various Claimants the employee was on a “frolic of his own”!