The High Court case of Elmontem v Nethercross Ltd t/a Roganstown Golf and Country Club and Max Usai  IEHC 91 provides guidance on the imposition of vicarious liability in the employment relationship and also considers the issue, whether an employer has provided a safe place of work for its employees.
Mr Usai was employed by Nethercross Ltd as head-chef in 2010. Mr Usai had been dismissed from his previous employment as a result of an incident in which he had assaulted an under-chef in the course of their work. Mr Brady, the general manager of Nethercross Ltd, was aware of this assault but had not informed Mr McGuinness, the managing director of Nethercross Ltd, during the recruitment process, nor had he cautioned Mr McGuinness about employing Mr Usai.
The Plaintiff in this case was the financial controller of Nethercross Ltd. Mr Usai had attended the Plaintiff ’s office on 21 March 2011 to discuss a health insurance matter. During this meeting, Mr Usai became increasingly aggressive and violently assaulted the Plaintiff in the presence of another employee. As a result of the assault, the Plaintiff suffered a black eye, a cut over his eyelid, contusions of his face, swelling of the soft facial tissues and bruising to his shoulder. The Plaintiff also suffered post traumatic stress disorder as a result of the assault.
The Plaintiff ’s claims
In the High Court, the Plaintiff submitted that Nethercross Ltd was vicariously liable for the assault committed by Mr Usai and/or that Nethercross Ltd was negligent and in breach of duty in failing to provide him with a safe place of work and responsible fellow employees.
To determine the issue of vicarious liability, the Court adopted the “close connection” test. This involves an analysis of the facts to determine if there is a close connection between “the acts which the employee is engaged to perform and which fall truly within the scope of his employment and the tortious act of which complaint is made.” In providing guidance to the applicability of the “close connection” test, the Court listed several factors to be considered which are summarised as follows:
- the nature of the employer’s business and whether the risk of the disputed act arose as a consequence of the employer’s business;
- the nature of the duties which the employee was asked to perform at the time of the disputed act;
whether the act could be said to be incidental to, or a consequence of, anything which the employee was employed to do by the employer;
whether the employee could reasonably be said to have been acting, however, mistakenly or excessively, in the interests of the employer or was merely pursuing his own private interests; and
whether the disputed act arose out of vengeance or spite etc. on the part of the employee.
This list is non-exhaustive and other factors may be considered depending on the particularities of each case.
While the opportunity to commit the assault would not have arisen but for the access to the Plaintiff ’s office, which arose due to Mr Usai’s employment, the Court found this was insufficient to establish the required close connection between that employment and his tortious act. The Court held that the assault constituted nothing more than “a vicious attack on the plaintiff motivated by some personal resentment which ignited an apparently ungovernable temper.” Such actions could not be remotely consistent with the interests of his employer and had no close connection with any actions which truly fell within the ambit of his employment. On this basis, Nethercross Ltd was not held vicariously liable for Mr Usai’s assault on the Plaintiff.
Duty to provide a Safe Place of Work
The Court then moved to consider the second aspect of the Plaintiff ’s claim, namely that Nethercross Ltd was negligent and in breach of duty in failing to provide him with a safe place of work and responsible fellow employees.
The Court reiterated the general principle that there is “a non-delegable duty at common law on an employer to take all reasonable precautions for the safety of each of its employees and not to expose them to a reasonably foreseeable risk of injury.” There is also a duty under the Safety, Health and Welfare at Work Act 2005 (the “Act”) to provide and maintain a safe place of work for employees and to provide competent co-employees. In examining the sections of the Act, the Court noted that employers had a duty to “prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk.” While the concept of “improper conduct” is undefined in the Act, the Court found that this encompassed such matters as bullying, harassment, physical violence, practical joking and racial or other abuse.
The evidence in the case established that Nethercross Ltd was aware of Mr Usai’s previous assault of a former co-employee through Mr Brady’s prior knowledge of this incident (which had arisen from Mr Usai losing his temper to an "almost maniac level"). Therefore, the Court was satisfied that Mr Brady knew or ought to have known that there was a very real risk, and not just a mere possibility, that Mr Usai could once again lose his temper and expose his fellow employees to a risk of physical injury. In this respect, it was reasonably foreseeable that Mr Usai’s “apparently ungovernable temper” was likely to prove a source of danger to the other employees.
The Court found that Nethercross Ltd had failed to exercise reasonable care by failing to implement measures to protect against the risk of a future assault in the workplace. In particular, the court referred to the failure to create a Safety Statement or a notified policy identifying prohibited conduct that would not be tolerated in the workplace. It specifically noted Mr Brady's failure to notify and warn Mr Usai in writing that physical violence towards any other employee would not be tolerated and would result in dismissal on grounds of gross misconduct.
The possibility of having the workplace monitored by CCTV or security staff was also cited as an additional deterrent measure. However, the deterrent effect of CCTV was questionable in this case, as Mr Usai had committed the assault in the presence of another co-employee.
On the basis of the above points, the Court held that the Plaintiff succeeded with this aspect of his claim and found Nethercross Ltd and Mr Usai jointly liable. The Court awarded the Plaintiff the sum of €28,000 for pain and suffering endured to date and special damages in the sum of €5,984.
Whilst it was clear in this case that there was no “close connection” between the assault and Mr Usai’s employment, other incidents involving less egregious acts may prove more difficult to determine. In such cases, the applicability of the close connection test will ultimately be determined by an analysis of the facts of the case and the non-exhaustive list of guiding factors outlined in the Court’s judgment.
This case illustrates the importance of employers ensuring that a detailed disciplinary policy and safety statement is put in place to inform employees of the types of improper conduct prohibited in the workplace. In particular, a disciplinary policy should contain a non-exhaustive list of the types of improper conduct, the different stages of the disciplinary procedure and the sanctions which may be imposed on a finding of improper conduct. The absence of such policies was a key factor contributing to the imposition of liability in this case and employers should ensure that employees are furnished with such policies, or made aware of their content, from the date of commencement of employment. This will assist an employer in proving that it took reasonably practicable steps to prevent improper conduct occurring in the workplace for the purposes of defending any claims brought by employees. Furthermore, the case also demonstrates the importance of conducting the appropriate enquiries at the recruitment stage to ensure that employers are fully aware of the employee's employment history. In circumstances where an employer has knowledge of a potential risk to the safety of its employees, there is a stringent obligation to ensure that all appropriate measures are taken to ensure compliance with the duty to provide a safe place of work.