The season of goodwill… (Well usually) Vicarious Liability of employers and Christmas parties

As we approach Christmas, the talk of many offices will be the upcoming Christmas party. Doing your best to ensure that no colleagues turns up with the same outfit are just one of the many factors that employees need to think about and carefully plan. More often than not, employers will simply be happy (and perhaps more likely relieved) if the party passes off with nothing more than a few sore heads the next day and a fairly modest bar bill. While colleagues will tend to work side by side without incident every other day of the year, add in a little (or a lot) of alcohol and the Christmas night out can be a disaster waiting to happen.

The types of office parties will vary from drinks in the office (tastefully decorated with last year’s tinsel) to party nights in the local hotel. As with most nights involving alcohol, the judgment of an individual may not be what it is during the hours of 9 to 5. So where does an employer stand when things do go beyond staff having a merry night?

Vicarious liability is the principle that an employer can be held liable for the actions of the employee. In some circumstances vicarious liability is governed by statute (for example, Equality Act 2010). The majority of cases will come under the common law test which has been set out in previous case law. The essential component of any claim for vicarious liability is that the act complained of must have been done “within the course of employment.” What the Tribunals will be considered to be within the course of employment will vary on the facts of the particular case. 

Acts of an employee which the employer authorises or instructs the employee to perform will almost certainly come within the principle of acting in the course of employment, especially if the employee is performing the duty exactly as instructed. It can be more complex when an employee performs a duty instructed by the employer but performs this duty in a way that is expressly prohibited by an employer. If an employee performs a task that is not authorised by the employer and has no connection with the employee’s employment then the employer is less likely to be liable. As outlined above, each case will depend on the circumstances of each case.

While the issue of vicarious liability is something that employers and employees should be mindful of, it can become more relevant at Christmas nights out. The recently decided case of Bellman v Northampton Recruitment Limited was one such unfortunate case that centred around a Christmas work night out. The Director and Shareholder of the company, Mr Major, assaulted a member of staff, Mr Bellmen, who incidentally was a long term friend. The Christmas party took place at a local golf club in which most of the staff attended. Following the end of the party, both Mr Major and Mr Bellmen together with other individuals attended a nearby hotel. Mr Major assaulted Mr Bellmen by punching him twice at around 3am. This resulted in Mr Bellmen seeking medical treatment and was knocked unconscious. The view of Mr Major’s evidence by the Judge was less than favourable.

The role of the civil court was to consider if the company was liable for the actions of Mr Major. The Judge in the case made reference to the “continuing difficulties with the issue” of vicarious liability. This is despite the recent case of Mohamud v WM Morrison Supermarket Plc from earlier this year. The Judge in Bellman set out five relevant principles in relation to assaults committed by an employee.

  1. An employer is not automatically liable for an assault by an employee just because it happened during working hours. At the same time, an employer is not free from liability just because it happened outside of working hours.
  1. The nature of the job is relevant and there must be a sufficient connection between the position in which the employee was employed and the wrongful act of the employee.
  1. The test for vicarious liability is imprecise and so each case will be determined on its own facts.
  1. While the time and place of where the act occurred is relevant, there must be a greater connection.
  1. The policy underlying strict liability should always be born in mind.

In this case, the Court found that the employer was not liable. Firstly, the assault occurred several hours after the end of the organised party. Secondly, the discussion between the parties involved social conversation and so was not linked entirely to speaking about work. Thirdly, there was no increased risk for others who were in attendance at the time of the assault.  The Court found that there was an insufficient connection between the actions of Mr Major and the employment of Mr Bellmen. The Judge summarised that “the rule must have proper boundaries; it is not endless.”

While the employer was successful in defending the claim, it should serve as a warning about how unpredictable the principle of vicarious liability can be. Had the facts of the case been slightly different then the outcome may have been in favour of the employee.

The case decision of Bellmen v Northampton Recruitment Ltd [2016] EWHC 3104 (QB) can be found here http://www.bailii.org/ew/cases/EWHC/QB/2016/3104.html.

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