Company Not Liable for Managing Director's Post-Christmas Party Assault on Employee (High Court)
In the recent case of Bellman v Northampton Recruitment Ltd the High Court held that an employer was not vicariously liable for a violent assault on an employee by the employer's managing director at an impromptu drinking session after the Christmas party.
An employer is usually held vicariously liable for the torts of an employee committed "in the course of employment". The test is whether the torts were "so closely connected with [the] employment that it would be fair and just to hold the employers vicariously liable" (Lister v Hesley Hall Ltd).
In Mohamud v WM Morrison Supermarkets Plc the Supreme Court held a supermarket vicariously liable for an employee's unprovoked violent assault on a customer at one of its petrol stations. Overturning the decision of the Court of Appeal, the Supreme Court found that there was a sufficiently close connection between the assault and the employee's job of attending to customers, such that the employer should be held vicariously liable.
The Supreme Court in Mohamud distinguished the much earlier case of Warren v Henlys Ltd, which also involved an attack on a customer by a petrol station employee. By the time that the assault happened the customer's business with the petrol station had ended, the petrol had been paid for and the customer had left the premises following an angry exchange with the employee. The customer then returned with a police officer for the purpose of making a personal complaint about the attendant. It was then that the employee attacked the customer. The court held that the attack was not in the course of employment.
In the Bellman case the High Court has held that a company was not vicariously liable for a violent assault by an employee on a colleague at an "impromptu" drinking session straight after the company's Christmas party. The drinks were separate from the Christmas party itself and at a separate location, there were employees' partners and other guests present as well as employees, and the conversation had been largely on non-work-related topics.
Neither the fact that the company was expected to pay for some or all of the drinks, nor the fact that the attack was triggered by a work-related discussion, in which the managing director felt that his authority was being challenged, were sufficient to outweigh the other factors and bring the encounter within the course of his employment. The incident had arisen in the context of "entirely voluntary and personal choices" by those present to engage in a heavy drinking session.
Many will no doubt see this decision as surprising, given the decision in Mohamud which appeared to suggest a broader application of the "close connection" test to incidents of assault by an employee. The court in this case seemed to see the nature of the interaction (a heated discussion between colleagues about work-related matters) as being less important than the time and place of the discussion (which the court found to be non-work related because it occurred at an unplanned post-party drink, rather than during the Christmas party itself).
Given the high stakes in this case (which concerns what seems to be a catastrophic career-ending injury with no apparent alternative source of compensation for the victim), and the finely balanced arguments on whether the close connection test was satisfied, it seems entirely possible that an appeal could be successful.
Employers should nevertheless exercise caution. This decision does not change the law, nor does it establish that post-Christmas party drinks are outside the scope of employment for vicarious liability purposes. As the court emphasised, each case must be examined on its facts. Moreover, the test for vicarious liability in discrimination and harassment claims under the Equality Act 2010 has in some cases been interpreted rather more widely than the test at common law.
This bulletin is for general guidance purposes only and should not be used for any other purpose.
Brabners is a Limited Liability Partnership