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Vicarious Liability | Employers held responsible for actions of managing director at post-Christmas party drinks

As Christmas party season starts, employers organising staff celebrations will want to take note of the Court of Appeal’s judgement in Clive Bellman (A protected party by his litigation friend, Susan Thomas) v Northampton Recruitment Ltd [2018] EWCA Civ 2214 where the company was held to be vicariously liable for the actions of an employee after a Christmas party.

This decision raises the issue of the scope of vicarious liability in circumstances where an employee's wrongful conduct occurs outside the workplace and outside office hours.

In December 2010, Northampton Recruitment organised a Christmas party for staff and partners at a local golf club, which was attended by the Claimant, Mr Bellman, and the managing director, Mr John Major. The company paid for taxis and accommodation for most of the guests at the nearby Hilton Hotel, which was the scene of an unplanned impromptu after party drinks for around half of the guests. It was here that in an unprovoked attack, the managing director assaulted Mr Bellman by punching him twice, on the second occasion Mr Bellman was knocked to the floor and suffered brain damage. The Judge described that the assault was fuelled by alcohol.

At first instance, the High Court found the employer to not be vicariously liable as the assault happened during unconnected "impromptu drinks", which took place after and not during a work social event and was therefore unconnected with the company’s business.

However, the Court of Appeal unanimously allowed the appeal, finding that “Mr Major would have seen it as part of his role to oversee the smooth running of the party and that he was not just an "attendee”. He arranged for NR to pay for the food and drink (subject to a financial limit behind the bar) and for taxis and accommodation for most of the guests”. Whilst the assault did occur at a separate after party, the assault also occurred following a heated work related discussion during which Mr Major had been challenged about a managerial decision and he was attempting to assert his authority. It was not an attack because of something personal but a misuse of his position as managing director, therefore the company should be held vicariously liable for his actions.

In applying the two step approach laid out in Mohamud v W M Morrison Supermarkets PLC, this decision shows that provided a sufficient link can be established with the employees’ employment, an employer may be found liable for the actions of the employee. However, employers should remember that it was key to the decision that Mr Major had a wide breadth of duties, and that without Mr Major asserting his own authority as managing director, even in the context of work discussions, the fact that the incident happened at “impromptu” after party may have been enough in another case to excuse the company from liability.

Employers should take notice of this decision and take the opportunity to educate employees on appropriate behaviour, in and outside of the workplace, in addition to ensuring that appropriate policies and training are in place.

Posted on 5 December, 2018 by Ortolan

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