Clive Bellman -v- Northampton Recruitment Ltd [2016] EWHC 3104(QB)

It is well established that vicarious liability can attach despite an employee’s wrongful conduct occurring outside of usual working hours - although exactly when and in what circumstances remains open to interpretation.

This was an employers’ liability claim arising from an assault on an employee following an office Christmas party.

In the early hours of 17 December 2011, Mr Bellman, a sales manager employed by the defendant, was assaulted by the company’s managing director Mr John Major within the lobby of Northampton’s Hilton Hotel after he questioned a managerial decision. Mr Bellman was punched twice, the second blow causing him to fall and hit his head on the marble floor. He suffered a fractured skull and irreversible brain damage.

He sought damages against the defendant on the basis that it was vicariously liable for the actions of Mr Major. The matter was heard before His Honour Judge Cotter in the High Court in November 2016.

The legal test for a finding of vicarious liability has developed through the common law. Its underpinnings relate to issues of policy and the decision of the court involves a value judgment. The court must first consider the field of activities entrusted by the employer to the employee (i.e. what was the nature of his or her job) and, secondly, whether there was a sufficiently close connection between the position in which he or she was employed and his/her wrongful conduct to make it ‘just’ for the employer to be held liable.

Mr Bellman’s claim failed. It was held that there was insufficient connection between the position in which Mr Major was employed and the assault for it to be appropriate for the defendant company to be held to account.

The decision may have come as a surprise to some – especially following the decision of the Supreme Court in Mohamud -v- WM Morrison Supermarkets PLC [2016] AC 677. The claimant succeeded in that case despite the Morrison’s employee who assaulted him ignoring a specific instruction not to follow Mr Mohamud out into the petrol station forecourt before assaulting him.

Turning back to the case at hand, Mr Major was described by the judge as the ‘mind and will’ of the business. The party at the Collingtree Park Golf Club had been arranged at his direction and paid for by the company. Following the party, taxis were put on for transport to the Hilton Hotel where many of the attendees were staying. The expectation was that the drinks at the Hilton would also be paid for by the company. Mr. Bellman’s counsel argued that weight should also be attached to what was being discussed. It seems that the dispute arose when some of the employees questioned whether another employee would be better placed working out of the Nuneaton office. Mr Major became incensed and summoned the remaining employees to gather round in the lobby and began to lecture them on how he was in charge and that he would do what he wanted to do. Mr Bellman challenged him and was subjected to an unprovoked attack.

However, the judge considered that what was taking place at the hotel could not be viewed as a seamless extension of the Christmas party; it was essentially an ‘impromptu drink’. There was no expectation or obligation on any employee to attend. He also relied on the fact that the conversation, for a significant period of time, had centred on social or sporting topics. To his mind, it 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. It could not therefore be said that Mr Major was acting in the course or scope of his employment but rather he was on a ‘frolic of his own’.

The judge acknowledged that the test for vicarious liability ‘is inevitably imprecise given the nature of the issues’ (paragraph 63). There is no concrete guidance on the type or degree of connection which will normally be regarded as sufficiently close to arrive at the conclusion that the employer should bear the consequences of the wrongful act.

Whilst some academics might argue that the social justice which vicarious liability is intended to exercise wanes in the absence of a more coherent test and that, perhaps, the law lords missed an opportunity to clarify the law in Mohamud, others will surely support its current elasticity in the midst of an ever-evolving society.

The result is undoubtedly a helpful one for the defendant although the uncertainty surrounding the applicability of the doctrine of vicarious liability remains.