In the recent case of Mohamud v WM Morrison Supermarkets plc, the Supreme Court broadened the scope of the employee acts for which employers can be held vicariously liable. However, the case of Bellman v Northampton Recruitment Ltd provides a useful reminder that liability does not extend beyond work-related activities.
In the Bellman case, the High Court considered the question of whether an employer was vicariously liable for an assault that took place at a gathering which followed the work Christmas party, and was triggered by a discussion which related to work issues. The Defendant was a small recruitment company. The altercation was between the MD and a sales manager.
Following a company-organised Christmas party at a local golf club, half of those present returned to a local hotel where some had rooms booked. Most of the party carried on drinking in the hotel lobby. By 3.00am, a handful of stragglers remained and ended up talking company politics. This caused the MD to feel challenged about decisions he had made in relation to the certain members of staff and led him to launch into an inebriated rant about his decision-making authority / autonomy which culminated in him stating:
‘I fucking make the decisions in this company. It’s my business. If I want him based in Northampton, he will be fucking based there’
He followed this up by repeatedly punching the Claimant, who suffered a life-changing brain injury because of the assault. Whilst the fact that the assault had taken place was not in question, the issue of whether the company was vicariously liable for the MD’s actions was.
To confirm, vicarious liability arises in common law where the wrongdoer is an employee of a defendant company (or in a relationship similar to employment) and the tort committed is sufficiently connected with the position in which he / she was employed.
Although there was no doubt that vicarious liability could arise in this case on the basis that the MD was an employee of the Defendant, the Judge found that it was not vicariously liable for the MD’s conduct in the circumstances. Although the judgment implies that vicarious liability would have been established had the altercation occurred at the party at the golf club because it was a work event organised / hosted by the MD and which employees such as the Claimant were expected to attend, the Judge was satisfied that the gathering in the hotel lobby was no longer a company event and the MD was no longer acting in the course of his employment as organiser or host. Although the conversation which led to the altercation was work-related, the Judge stated:
‘I cannot see the wide ambit of [the MD’s] duties in the company and the fact that the discussion has turned to work as somehow transforming what was clearly a recreational activity into something properly viewed as in the course of employment’
He concluded by saying that the hotel gathering:
‘…was, or without any doubt became, an entirely independent, voluntary, and discreet early hours drinking session of a very different nature to the Christmas party and unconnected with the Defendant’s business.’
With the Christmas party season now upon us, employers should be mindful of the following key points from this judgment:
- work Christmas parties are likely to be regarded as closely connected to employment, especially where there is an expectation that employees will attend;
- unplanned and spontaneous employee gatherings occurring after official work Christmas parties are much less likely to be found to be closely connected to employment;
- the fact that discussions preceding, and indeed triggering, an assault are work-related will not be not enough, in and of themselves, to render the situation as having a close enough connection to employment for the employer to be vicariously liable – the surrounding circumstances will be highly relevant.
More generally, Research by the CIPD suggests 10% of workers know of a colleague who has either been disciplined or dismissed for inappropriate behaviour at the Christmas bash. Common reasons include fighting, threatening behaviour, sexual harassment, bullying, discrimination on the grounds of disability or religion, and “other inappropriate behaviour” which could include, for example, unorthodox use of the office photocopier, amorous activity on company premises or insulting the boss. To assist, here are some tips for avoiding such pitfalls:
- Set the boundaries prior to the event, and make sure that you remind staff of the consequences (and if possible limit the free drink by using tokens).
- As a manager, this is not the time to undertake a performance appraisal and give feedback to staff, especially if you’re under the influence of alcohol. It is also not the time to promise any salary increases – even at a work party a promise may well amount to a contractual change.
- Similarly, do not be tempted to discipline employees at the party itself. Send the employee(s) home, if appropriate, and deal with the incident in the workplace and during working time.
- For those working over the Christmas/New year period or attending the Christmas party and working the next day, ensure that policies are in place regarding drugs and alcohol and reemphasise these in advance.
At Employee Management Ltd, our HR support consultants provide commercially minded employment law advice and bespoke HR services that can actively reduce your organisation’s exposure to litigation. We also offer a comprehensive employment tribunal representation service through which we can handle any claims you do receive. If you are an employer that is facing the Christmas season with some trepidation, please feel free to contact us for a confidential, no-obligation discussion.