Why Didn’t the World Listen to Experts Who Warned of a Pandemic?

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Employment Law News

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Why Didn’t the World Listen to Experts Who Warned of a Pandemic?

The opening session of the Global Solutions Summit 2020 poignantly stated

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Covid-19 pandemic demonstrates to us the value of freedom – the freedom to move, to be with those we love, to live in dignity and security – for ourselves and for those around us, from our loved ones to the refugees and the downtrodden. Above all, it shows us the importance of recognising the true purpose of all our businesses and economies, our political parties and governments, our local civic associations and our international organisations, our conventions and ideologies, and all our other systems: namely, to serve human needs and purposes.

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Anyone who had listened to US President, Donald Trump in recent weeks would be forgiven for thinking that no one could have ever predicted or prepared for a global pandemic on the scale of COVID-19. At his daily press briefings, in relation to the national stockpile of medical products needed to protect people and combat the virus, he repeats the line that the “the cupboard was bare” when his administration took over from his predecessor, Barack Obama. While it is true that the US was short on some items such as the N95 masks following the H1N1 virus in 2009, the US national stockpile was not depleted. And even if Mr Trump’s assertion is true, his administration has had since January 2017 to build up the reserves needed.

No politician can argue we were not warned

In April 2015, the founder of Microsoft, and now billionaire philanthropist, Bill Gates, gave a TED presentation entitled, “The next outbreak? We’re not ready”.

He started the presentation by saying, “when I was a kid, the disaster we worried about most was a nuclear war…today the greatest risk of global catastrophe doesn’t look like this [shows a slide of a nuclear ‘mushroom cloud’], instead it looks like this [shows a slide of a picture of a virus cell]. He then goes on to warn us that microbes are more likely to kill millions of people in the coming years, not war.

Drawing on lessons from the Ebola crisis, he says that three key pieces of the jigsaw required to control the outbreak, were absent:

Surveillance and data – i.e. a team of epidemiologists to gather data on the prevalence, causes and spread, and IT systems to capture and process the information.
Personnel – thousands of medical personnel were needed, but it took too long to assemble the resources needed
Treatment – hundreds of thousands of workers were needed to deliver treatments for Ebola. In reality, there was no one looking at treatment approaches and diagnostics.

Rather ominously, he then went on to warn that the next threat could come from a virus on par with the Spanish flu of 1918, which could kill millions; “we should be concerned“. However, Gates, is as much an optimist as he is a realist. His belief is that science and technology can provide the answers and solutions we need to tackle and eradicate the next global pandemic, if only the necessary investment is made across the globe. Mobile phones can be used to transmit information to and from the public, satellite maps show where people are and where they are moving, and advances in biology mean that pathogens can be analysed rapidly and vaccines produced. What is then needed is a truly global health system which brings all of the elements and data together.

While trillions has been spent on preparing for war, very little by comparison has been spent on pandemic preparation. Yet Gates believes that the approach we use for preparing for war can be used for pandemics. After all, the military has thousands of specially trained personnel ready to go where needed, to bring back information, and form a strategy to tackle a specific threat.

Moving onto the costs, Gates referenced the World Bank, which estimated that a global flu pandemic may cost the world US$3 trillion and may lead to millions of deaths. The cost of putting in place measures to control future pandemics, Gates believes, would be a small fraction of this amount.

Signing off, Gates says, “we need to get going because time is not on our side“. Fast forward to 2020, and the question must be asked as to why, when the pandemic did come in December 2019, we were not ready.

What was learned from Exercise Cygnus?

You may never have heard of Exercise Cygnus, which took place in Britain in October 2016, especially given all of the Brexit related noise at the time, and also because its findings were not made public. Exercise Cygnus was a pandemic test drill involving all of the key governmental departments, the NHS, and local authorities across Britain. Simulations showed that the Britain was woefully unprepared in terms of critical care beds, morgue capacity, and personal protective equipment (PPE), while revealing large gaps in our Emergency Preparedness, Resilience and Response (EPRR) plan. According to a senior academic involved in Exercise Cygnus and the current pandemic research “these exercises are supposed to prepare government for something like this – but it appears they were aware of the problem but didn’t do much about it…. We’ve been quite surprised at the lack of coherent planning for a pandemic on this scale. It’s basically a lack of attention to what would be needed to prevent a disease like this from overwhelming the system. All the flexibility has been pared away, so it’s difficult to react quickly. Nothing is ready to go.”

The 2016 exercise revealed the lack of capacity to handle a serious pandemic, but it is less clear whether any conclusions were drawn regarding what we now know to be important.

The horizon

The focus in Britain has moved to local lockdowns and, in England, ‘test, track and trace’ has become the mantra for fighting Covid-19, albeit the first NHS contract tracing app failed. Contact tracing is important and involves an infected person recounting their movements and activities to build up a picture of who else might have been exposed. A manual contract tracing scheme has also been running since May 2020.

The government explains that the new NHS app will enable anyone with a smartphone to engage with every aspect of the NHS Test and Trace service, from ordering a test through to accessing the right guidance and advice. They claim it will allow people to identify their symptoms, order a test and allow them to feel supported during any subsequent isolation. It will also include a feature that will allow QR codes to be scanned for people to ‘check-in’ to public locations, such as pubs or restaurants, and then be informed if a coronavirus breakout has happened there.

We await further news about the roll-out date and the apps’ full functionality.

BDBF is a leading firm of employment law specialists advising experienced employees, partners and directors in the insurance, academic, medical, legal, and financial services sectors. Contact us on 020 3828 0350 for employment law advice.

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Barclays Bank And Morrisons Supermarket NOT Vicarious Liable for their Employee’s unlawful actions

Employment Law News

Barclays Bank And Morrisons Supermarket NOT Vicarious Liable for their Employee’s unlawful actions

Earlier this year the Supreme Court issued two judgments on the scope of an employer’s vicarious liability. The decisions in WM Morrisons Supermarkets plc v Various Claimants [2020] UKSC 12 and Barclays Bank plc (Appellant) v Various Claimants [2020] UKSC 13 will provide relief to employers and insurers and disappointment to employees who have suffered harm following negligence and are seeking compensation.

Both cases had specific facts; therefore, it is prudent to consider both separately.

An employee with a grudge

WM Morrisons Supermarkets plc v Various Claimants

In 2015, ex-Morrisons Supermarket employee, Andrew Skelton, was jailed for eight years, having been found guilty of fraud, securing unauthorised access to computer material, and disclosing personal data.

His motive appeared to be revenge – he had received a warning from his employer after he was discovered using the mailroom at Morrison’s Bradford headquarters to distribute eBay packages.

Skelton subsequently leaked the personal details of over 100,000 Morrison’s employees, including information related to salaries, National Insurance numbers, dates of birth, and bank account details. This information was sent to several newspapers and also uploaded to data sharing websites. Not only did he purchase a phone specifically to leak the data and to avoid detection, he used the Tor network to access the dark web.

Following the criminal case, affected employees brought a group action against Morrisons for compensation. They argued that the supermarket was vicariously liable for its employer’s actions.

In decisions that shocked employers, the High Court and Court of Appeal found Morrisons vicariously liable for Skelton’s actions. This was despite the fact Morrisons had adequate data protection policies and procedures in place and the harm was directed at the employer, rather than employees.

However, the Supreme Court unanimously held that the supermarket was not vicariously liable for the data breach, dashing employees’ compensation hopes.

The Supreme Court concluded that the Court of Appeal had misunderstood the rules of vicarious liability. There is a two-stage test laid down in Various Claimants v Institute of the Brothers of the Christian Schools for establishing vicarious liability; namely

a) is there a relationship between the two persons that makes it proper for the law to make one pay for the negligent actions of another, and

b) is there a connection between the relationship and the tortfeasor’s wrongdoing?

If there is doubt as to part A of the test, Lord Phillips stated in Christian Schools:

“The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied:

the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;
the tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
the employee’s activity is likely to be part of the business activity of the employer;
the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;
the employee will, to a greater or lesser degree, have been under the control of the employer.”

He went on to say (at para 47):

“At para 35 above, I have identified those incidents of the relationship between employer and employee that make it fair, just and reasonable to impose vicarious liability on a defendant. Where the defendant and tortfeasor are not bound by a contract of employment, but their relationship has the same incidents, that relationship can properly give rise to vicarious liability on the ground that it is ‘akin to that between an employer and an employee’”.

Through live-stream video link, Lord Reed, who delivered the Morrison’s judgment, concluded that employers could only be held liable for an employee’s actions if those actions were “closely connected” with their work tasks.

He said:

“In the present case, Skelton was not engaged in furthering Morrisons’ business when he committed the wrongdoing in question. On the contrary, he was pursuing a personal vendetta, seeking revenge for the disciplinary proceedings a month earlier.

In these circumstances, applying the established approach to cases of this kind, his employer is not vicariously liable.”

The Supreme Court went on to conclude that although there was a close temporal link and an unbroken chain of causation linking Skelton having access to the Appellant’s personal data on its employees and being able to transfer that data to the file share, this was not enough to satisfy part B of the test laid down in Christian Schools.

Historic sexual assault

Barclays Bank plc (Appellant) v Various Claimants

The second major vicarious liability decision released in early April involved the Supreme Court ruling on whether Barclays Bank was vicariously liable for sexual assaults allegedly committed between 1968 and circa 1984 by the late Dr Gordon Bates.

Dr Bates was hired by Barclays to perform unchaperoned medical examinations on prospective employees. He had his own patients and private practice and Barclays paid a fee for each completed report but did not provide Dr Bates with a retainer.

The group action for vicarious liability consisted of 126 Claimants, all of whom claimed to have been sexually assaulted by Dr Bates. The court at first instance and the Court of Appeal found Barclays Bank vicariously liable for the sexual assaults. However, the Supreme Court reversed these decisions, declaring that Part A of the two-stage test set out in Christian Schools was not satisfied because Dr Bates was clearly an independent contractor.

Lady Hale, in delivering the judgment, said:

“Clearly, although Dr Bates was a part-time employee of the health service, he was not at any time an employee of the Bank. Nor, viewed objectively, was he anything close to an employee. He did, of course, do work for the Bank. The Bank made the arrangements for the examinations and sent him the forms to fill in. It therefore chose the questions to which it wanted answers. But the same would be true of many other people who did work for the Bank but were clearly independent contractors, ranging from the company hired to clean its windows to the auditors hired to audit its books. Dr Bates was not paid a retainer which might have obliged him to accept a certain number of referrals from the Bank. He was paid a fee for each report. He was free to refuse an offered examination should he wish to do so. He no doubt carried his own medical liability insurance, although this may not have covered him from liability for deliberate wrongdoing. He was in business on his own account as a medical practitioner with a portfolio of patients and clients. One of those clients was the Bank.”

The impact of these decisions

The decision in Barclays Bank plc (Appellant) v Various Claimants clarifies that, although the traditional rule that only an employer/employee relationship (in an employment context) can give rise to vicarious liability has widened over recent years, liability does not extend to independent contractors.

With regards to the decision in Morrisons, employers should not take for granted that the issue of vicarious liability has been settled. There are several data breach cases currently awaiting a hearing and the Supreme Court’s ruling related primarily to the facts of the case before them. Employers could still find themselves vicariously liable for the damage caused by data breaches. Given that many employees now work from home, due to the Coronavirus pandemic, the opportunity for breaches to occur has dramatically increased.

Unfortunately for employers and employees, we may see a wave of data breach claims cases over the next few years.