The Court of Appeal recently found an employer to be vicariously liable for the actions of one of their employees following a staff Christmas party.
This appeal case will unfortunately bring little comfort to employers tasked with planning Christmas parties this festive season. Employers and their insurers should be alert to the risk of vicarious liability for their employees’ wrongdoing outside of working hours and away from the workplace.
In Bellman v Northampton Recruitment Limited  EWCA Civ 2214 Mr Bellman, the Claimant, was a new employee of the Respondent recruitment agency, Northampton Recruitment Limited. The Respondent organised a Christmas party for staff and then paid for taxis to, and drinks at, an after-party at a nearby hotel.
At the after-party, Mr Major, the Managing Director of the Respondent, became embroiled in an argument with the Claimant about the terms of his employment. The Managing Director proceeded to give the Claimant, amongst others, a long lecture about his authority at the Respondent. He then punched the Claimant in the face twice. The Claimant suffered serious brain damage as a direct result.
The Claimant alleged that the Respondent was vicariously liable for the Managing Director’s assault.
High Court judgment
At first instance, the High Court considered the two-stage test for vicarious liability namely (1) a consideration of what functions have been entrusted by the employer to the employee; and (2) whether there was a sufficient nexus between the position in which the wrongdoer was employed and his wrongful conduct, so as to make the Respondent liable.
For three main reasons, the judge held the assault was insufficiently connected with Mr Major’s employment:
- There was a temporal and substantive difference between the organised Christmas party and the subsequent after-party at the hotel (where the assault happened). It was decided that a line could be drawn under the organised event.
- The Claimant’s case was that more weight should be afforded to the subject matter of the discussion versus the time and place of the discussion. The Judge rejected this as potentially “so wide as to be potentially uninsurable”.
- Despite paying for the alcohol at the after-party, the provision of such was seen to be “so far removed from employment” and any increased risk of confrontation at the party did not materialise.
Court of Appeal judgment
The Claimant was granted permission to appeal and the Court of Appeal overturned the High Court decision.
The Court of Appeal held that there was sufficient connection between Mr Major’s field of activities and the assault to render it just that the Respondent should be vicariously liable for his actions.
- The Court held that a broad analysis of the employee's functions and activities should be undertaken, not limited by what they are expressly authorised to do by their employer. Mr Major's job remit was wide.He was the Respondent’s most senior employee and when he was lecturing the staff, he was doing so as the Respondent’s director at a follow-up event paid for by the Respondent.
- The Court held that there was sufficient connection between Mr Major's job and the wrongdoing that occurred.Whilst not a seamless extension of the Christmas party, the after-party had to be seen against the backdrop of the work event paid for by the Respondent.The Judge held that the case arose because of the way in which, at the after party, the Managing Director chose to exert his “dominance” as the only real decision-maker in the company.This was a misuse of his position as Managing Director of the Respondent.
It was noted in the Judgment that this case is emphatically not authority for the proposition that employers become insurers for violent or other tortious acts by their employees. That said, if a senior member of staff uses an organised work event, or a follow-on to that event, to assert their authority over a colleague, vicarious liability is likely to follow.
Assault in the context of this case was punching an employee in the face, but it could also impact the liability of an employer for sexual harassment that takes place outside of working hours. Following this ruling, employers may be held vicariously liable in a sexual harassment context if there is a sufficient connection between the harasser’s role and their conduct.
This case is an important reminder of the risks to an employer at events outside of the workplace. Prudent employers may wish to consider issuing a conduct statement to ensure employees are aware of the standard of behaviour required of them at work events, and the consequences of falling below those standards. By outlining what is and is not acceptable conduct in a policy, employees may be more inclined to exercise caution when the drinks are flowing.