Gazing through the window on a Thursday afternoon, the rapidly fading light, low hanging grey sky and relentless rain is a stark reminder that, despite my internal denial, November is well and truly upon us. This means that Christmas is just around the corner and, with that, many Christmas parties.
It feels fairly trite, almost lazy, to be trotting out the classic ‘Christmas party’ article but following the recent Court of Appeal decision in Bellman v Northampton Recruitment (‘Bellman’) there are very real issues that employers/managers need to have in their minds as their workforce plead for the limit on the Christmas party bar tab to be increased for the umpteenth time. This is because Bellman is a decision on what liability an employer has for the actions of one of its employees – in this case a serious physical assault.
Legal principle
An employer is vicariously liable for a tort (civil liability) committed by its employee if the employee is acting in the course or scope of their employment.
Background
Mr. Bellman was employed by Northampton Recruitment Limited (‘NR’). Mr. Major was one of three directors and shareholders of NR and a key factor in this case is that, in reality, he was the directing mind of the company, seeing himself in overall charge of all aspects of NR business.
On 11 December 2016 NR held a Christmas party for its staff, which was attended by Mr. Bellman. Afterwards, a number of NR employees headed to the Hilton Hotel for further drinks. This included Mr. Bellman and Mr. Major.
Physical attack
In the early hours of 12 December 2016, a disagreement arose between Mr. Bellman and Mr. Major about the recruitment of another employee and Mr. Major seems to have perceived this as a challenge to his authority – telling Mr Bellman “I f****** make the decisions in this company it’s my business”. Through the fog of (presumed) inebriation Mr. Major then punched Mr. Bellman causing him to fall to the ground. Mr. Bellman is described as getting back to his feet, bleeding from his left eye area, and holding out his hands in a gesture of surrender. Nevertheless, Mr. Major then punched Mr. Bellman again, this time knocking him unconscious and causing him to fall to the floor, hitting his head on impact and suffering a fractured skull and traumatic brain damage as a result.
Decision under appeal
The question that the Court of Appeal had to answer was whether NR was vicariously liable for the assault on Mr. Bellman – the original judge having found that there was insufficient connection between Mr. Major’s “field of activities” (i.e. the functions entrusted to Mr. Major by NR) and the assault.
Legal principles
As mentioned, the first question to be considered by a court dealing with vicarious liability is what was the “field of activities” i.e. the nature of the employee’s job? Case law tells us that this must be considered broadly.
The second question is whether there was sufficient connection between the position in which the employee was employed and the unlawful conduct to make it right for the employer to be held liable under the principle of social justice. In other words, is there evidence of the employee using or misusing their position in a way that injured the third party? If so, it is appropriate for the employer who put the employee in that position to be held responsible for his/her actions. Simply because an employee’s conduct is inexcusable does not necessarily mean that it is so far removed from their employment as to absolve the employer of any responsibility for it.
The Supreme Court’s decision in Mohamud v W M Morrison Supermarkets plc is a good example to consider at this point. Here, having gone into a Morrison’s petrol kiosk to ask if he could print some documents from a USB stick, a member of the public was subjected to “foul, racist and threatening language” from the Morrison’s employee and then assaulted after he returned to his car. We can safely assume that such actions did not feature on the employee’s job description but he was entrusted to attend to customers and respond to their inquiries and so the connection between the “field of activities” and his employment did not cease when he stepped out from behind his counter and followed the victim onto the forecourt. He had not “metaphorically taken off his uniform” and in telling the customer never to return to the petrol station (before punching him) this was an order to keep away from the premises rather than something more personal – the motive for the attack was irrelevant because he was purporting to be acting on behalf of his employer.
As mentioned, the nature of Mr. Major’s role was wide reaching, with him being in overall control of all aspects of NR business. It was also found that “maintenance of his managerial authority” would have been a central part of his role. However, was Mr. Major merely a drunken reveller (as his legal team asserted) or was he acting within the nature of his job when he was lecturing a group of people, including NR employees, and then went on to assault Mr. Bellman when he considered his authority challenged? In other words, was he acting within the course of his employment or on “a frolic of his own” and what difference did it make that the assault occurred in a hotel in the early hours of the morning?
Sufficient connection
Despite the time and place of the incident, the Court of Appeal concluded that Mr. Major was purporting to act as MD of NR and was exercising the wide remit granted to him by NR. He was considered to be attempting to assert his authority over subordinate employees – choosing “to wear his metaphorical managing director’s hat and to deliver a lecture to his subordinates.” He was not merely one of a group of drunken revellers amongst whom the conversation had turned to work. The attack was held to be a misuse of the MD position entrusted to him by NR.
Although the “after party” was not considered a seamless extension of the Christmas party it was also not an impromptu event and needed to be considered in the context of the evening’s events. Mr. Major was a significant factor in the organisation, and funding, of the party and, even if he had removed his managerial hat at the hotel, he was considered to have put it back on again and re-engaged his wide remit as MD when challenged – seeking to assert his authority, ultimately with violence.
Whereas the judge in the original hearing had used the analogy of a social round of golf between colleagues during which the conversation turns to work, the Court of Appeal considered this to a different premise because, unlike with a Christmas party where the hierarchical nature of the business generally still applies, for a social round of golf all participants would be equal and in attendance as casual friends and golfers. The unscheduled and voluntary nature of the party was not found to have changed the dynamic between those who attended. As such, Mr. Major’s role as MD was re-engaged at the after party. Furthermore, the reliance by the original judge upon the gap between the party and the after party as justification for the events of the after party being insufficiently connected to Mr. Major’s employment was considered “misplaced”.
Despite the time of day when the assault on Mr. Bellman took place (early hours) and the location it took place in (at a hotel) the Court of Appeal concluded that Mr. Major’s position of seniority had persisted and was therefore a significant factor. Mr. Major was considered to be in a dominant position with a supervisory role enabling him to assert authority over the staff present. On this basis it was found that there was sufficient connection between the nature of Mr. Major’s role and the assault to render NR vicariously liable for Mr. Major’s actions. Mr. Bellman’s appeal was therefore successful.
The Bellman appeal was heard by three Court of Appeal judges and it was a unanimous decision in favour of Mr. Bellman. However, Lord Justice Irwin was hesitant in his agreement and emphasised the unusual nature of the facts in the case and how parallels can only be drawn in limited circumstances. Irwin LJ was emphatic that the decision was not a precedent for vicarious liability arising simply because an assault follows an argument about work matters, even if the perpetrator is significantly more senior than the victim. Mr. Major’s dominance as the only real decision maker in the company and his choice to exert that authority were key factors for Irwin LJ.
Comment
So, what do we take away from this case? Well, it certainly isn’t going to suddenly open the floodgates for employers to be the “insurers for violent or other tortious acts[1]” committed by its employees but it should be a reminder to employers that there is very real scope for vicarious liability to arise from the actions of employees. With this in mind, events such as the Christmas party, where alcohol can flow quite freely, need to be carefully managed in an effort to minimise risk and if a group of individuals seek to ‘keep the party going’ then it may be best to ensure that there is no connection between the business and the ‘after party’, for example, not paying for taxis, accommodation, further drinks etc. This should help in breaking the connection between the events of the after party and the employment of the employees present at it.
Chris Morse is a Chartered Legal Executive and member of the HRExpress team. For more information on any HR and employment law issues please contact Chris on 01872 265100 or email employment@stephens-scown.co.uk
[1] Per Lord Justice Irwin in Bellman v Northampton Recruitment Limited