VICARIOUS LIABILITY | The worst Christmas gift for employers


VICARIOUS LIABILITY | The worst Christmas gift for employers

When throwing a work Christmas party, employers have a long list of things to plan: the venue, food, drinks, music, entertainment, decoration and, transport. 

However, sometimes employers forget that they have extra responsibilities too. 

If these essentials are forgotten, employers can get into all sorts of trouble.

Vicarious liability

The most important thing employers need to remember when planning their Christmas party is that employers can be held liable for the actions and comments of their staff at work events if it occurs “in the course of employment”.

This means that even if the party takes place outside normal working hours and away from the workplace, it still counts as a work-related event. You can assume that, in the eyes of the law, the party will be considered “in the course of employment’ and as such, employers are still responsible for their staff’s behaviour. An employment law specialist would be able to advise further around vicarious liability.

It might not seem fair, but employers can be held liable for any acts of discrimination, harassment or victimisation carried out by their employees, irrespective of whether the employer knew or approved the action or comment constituting harassment.

Lets take a close look at the Court of Appeal case of Bellman v Northampton Recruitment Ltd [2018].

In December 2011, Northampton Recruitment Ltd held a work Christmas party for its staff at a golf club. Following this, some of the guests went to a hotel bar. Mr Major, the Managing Director of Northampton Recruitment Ltd and Mr Bellman, a sales manager, were amongst the group.

One of the topics of conversation was about a new hire. Mr Major lost his temper and lectured the group, explaining that he was the owner, made the decisions and paid their wages. When challenged in a non-aggressive way by Mr Bellman, Mr Major swore at him and punched him twice. This resulted in Mr Bellman suffering from traumatic brain damage. 

Mr Bellman proceeded to make a claim for damages, arguing that the recruitment agency was vicariously liable for Mr Major’s conduct.

High Court decision

The High Court ruled that the recruitment agency was not vicariously liable for the Managing Director’s assault on Mr Bellman.

They considered that the drinks at the hotel were not planned, occurred at a different location to the party’s venue and the guests were there by “entirely and voluntary and personal choices”.

They found there was not enough of a connection between Mr Major’s role as the managing director and the assault.

Avoid an HR Headache this Christmas!

Court of Appeal ruling

The Court of Appeal, however, did not see it in the same way. They followed the Supreme Court judgment in Mohamud v W M Morrison Supermarkets PLC [2016] which set out the following test:

  • What are the “field of activities” entrusted by the employer to the employee?
  • Is there enough of a connection between the “field of activities” and the wrongful conduct to make it right for the employer to be held vicariously liable?

The Court of Appeal notes that “The unscheduled drinking session was not a seamless extension of the Christmas party… The venue had changed, there was a temporal gap between party and drinks, albeit relatively short, and attendance at the drinking session was voluntary. However, it seems to me that the drinking session must be seen against the background or in the context of the evening’s events. .. The drinks occurred on the same evening as the work event which had been paid for and orchestrated by Mr Major on behalf of Northampton Recruitment Ltd. Mr Major had already been fulfilling his managerial duties for a large part of the evening. Having orchestrated the party, he organised and paid for the taxis to the hotel and continued to provide drinks which were to be paid for by Northampton Recruitment Ltd”.

"He was in a dominant position and had a supervisory role which enabled him to assert his authority over the staff who were present ..."

Conclusion

The Court concludes “In summary, it seems to me that given the whole context, and despite the time and place at which the assault occurred, Mr Major’s position of seniority persisted and was a significant factor. He was in a dominant position and had a supervisory role which enabled him to assert his authority over the staff who were present …”

Therefore, in this case, they deemed that there was sufficient connection between Mr Major’s field of activities and the assault; therefore Northampton Recruitment Ltd should be vicariously liable.

Lord Justice Irwin was very keen to highlight “how unusual are these facts, and how limited will be the parallels to this case”. Cases do turn on their facts, but the case does act as a reminder to employers that they can be held vicariously liable. Defending an Employment Tribunal claim can be the worst possible start to the New Year, so if you would like advice in preparation for your Christmas party, seek Employment Law Advice at the earliest opportunity.  


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