Seasonal warning about Christmas parties

17 December 2019

Rating system:
Reading time (1-10 minutes): about 1
Sophistication level (1 (idiot) – 10 (expert)): 3
Entertainment value (1 (turgid) – 10 (side-splitting)): 7
 

Background

Employers can be held liable for unlawful things done by their staff if these take place in the course of their employment.  This can include work-related social events out of office and after hours, particularly if they are organised by the employer. But what about post-party incidents?

Recent case

Mr Major was the MD of Northampton Recruitment Limited. He organised a Christmas party for staff and their other halves. He arranged for taxis either to take them home or to a hotel where some were staying. He was also staying at the hotel. In the hotel lobby they carried on drinking and talking. The conversation turned to shop talk and some employees had the temerity to criticise some of Mr Major’s decisions. He ‘summoned’ the remaining staff in the lobby and told them off saying it was his company and he could do what he liked. One employee, Mr Bellman, carried on criticising Mr Major who chose to hit him twice, knocking him out and causing severe brain damage. Mr Major needed to make the case that the company was vicariously liable so that he could claim compensation (backed by the company’s insurance).

The High Court said the company was not responsible as it all happened outside the course of employment. The fact that they were talking shop wasn’t sufficient. Mr Bellman appealed.

What did the Court of Appeal decide?

The Court of Appeal said the company was responsible. Mr Major was not really a ‘fellow reveller’ as his role as MD gave him power and authority over his staff which he grossly misused. Basically they wouldn’t have been drinking with him or let him ‘summon’ them if he wasn’t their boss, and the assault was related to work-related arguments.

Conclusion

The law of vicarious liability has moved on quite a bit since I started in the law earlier last century. It used to be that employees had to be carrying out their normal duties but in a wrongful and unauthorised mode, whereas if they were ‘on a frolic of their own’ the employer would not be held responsible. Whereas now there is a far looser test of whether there is a ‘sufficient connection with the employee’s employment’ such that it would be ‘fair’ to hold the employer vicariously liable.

Clearly in this case this was a result the courts wanted to reach as Mr Major seemed to be rather an unpleasant bully and the judgment helped Mr Bellman get compensation from the company’s insurance. But the courts are clearly stretching the new test further and further where they think it is ‘fair’ to do so. Query whether the judgment would have been the same if the arguments at the specific time of the assault had moved on to something else, such as football or politics or the pulchritude of someone’s partner. The Court of Appeal did try to emphasise the unusual facts of this case, and emphasised that generally a vicarious liability will not arise just because there is an argument about work matters between colleagues, which leads to an assault, even when one colleague is markedly more senior than the other. This case was “emphatically not authority for the proposition that employers become insurers for violent… acts by their employees”. Although things might be going that way…?

Case: Bellman v Northampton Recruitment Ltd