Defendant vicariously liable for assault carried out by managing director at Christmas after party

12 Oct 2018

Bellman (a protected party by his litigation friend) v Northampton Recruitment Ltd [2018] EWCA Civ 2214

Background

In the early hours of 17 December 2011, Mr Major, a managing director and shareholder of the defendant company assaulted the claimant, punching him twice and knocking him to the floor. As a result, the claimant hit his head and suffered significant brain damage.

Earlier that night, the claimant and his partner had attended the works Christmas party which was held at a golf club. The party had been organised by the defendant and Mr Major had been present at the golf club. During the course of the evening high volumes of alcohol had been consumed by those that had attended the party. After the party, just over half of the guests went onto the Hilton hotel for further drinks but this was not a pre-planned extension to the work’s Christmas night out.

The assault happened at the Hilton hotel where Mr Major, who was drunk at the time, had summoned the defendant’s employees in a heated rant about recruitment and deployment. The claimant in a non-aggressive manner challenged the statement in respect of the deployment of a particular employee and in response Mr Major stated “I f****** make the decisions in this company, it’s my business. If I want him based in Northampton he will be f****** based there”. Following this heated exchange, Mr Major proceeded to assault the claimant.

The claimant pursued his claim against the defendant on the basis that they were vicariously liable for the act of assault that had been carried out by Mr Major. The claimant’s case was that the post event drinks were a seamless extension of the Christmas party. It was also submitted that the discussion that had taken place was in relation to work topics and Mr Major trying to assert his authority, which was in the course of and closely connected with his employment.

The first instance decision

The High Court considered the development of vicarious liability and the principles of social justice that underpin the modern doctrine of vicarious liability.

Judge Cotter QC focussed on the decision in Mohamud v WM Morrison Supermarkets Plc [2016] UKSC 11 and the two questions to be considered when assessing whether an employer is vicariously liable for the wrongful acts committed by an employee.

1. What functions or “field of activities” were entrusted by the employer to the employee, i.e. what was essentially the nature of their job?

2. Whether there was sufficient connection between the position, in which the employee was employed, and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice.

In respect of the first question, it was noted that Mr Major had a wide range of duties as the managing director and clearly saw himself as being in overall charge of all aspects of the defendant’s business, to include overseeing the running of the Christmas party. However, it was held that it would not be right for such a wide range and duration of duties to make Mr Major always on duty just because he was in the company of other employees.

In relation to the second question, it was concluded that the assault had been committed after and not during the organised work Christmas party. The further drinking that went on at the Hilton hotel was found not to be an extension of the organised work event. Instead it was held that the assault occurred at a spontaneous post event drink. Also, consideration was given to the fact that the conversation between people, for a significant period of time, had been about social topics and not about work.

The court held that although the topic being discussed had switched to work at the time of the assault, this did not mean that it happened in the course of Mr Major’s employment, so there was not sufficient connection to make it right for the defendant to be held liable for what happened.

It was specifically concluded that the assault happened during an entirely independent, voluntary and discreet early hours drinking session which was very different to the organised Christmas party and was unconnected with the defendant’s business. It was also held that the fact that a later discussion took place about work could not provide a sufficient connection to support a finding of vicarious liability against the defendant.

The claimant appealed the decision on the basis that the judge had been wrong to find that there was insufficient connection between Mr Major’s position as managing director and his wrongful conduct to make it right for the defendant to be vicariously liable for his actions.

Court of Appeal decision

The Court of Appeal unanimously allowed the appeal.

Lady Justice Asplin gave the leading judgement stating that the judge had found that Mr Major was the directing mind and will of the defendant, had a wide remit and was in overall charge of all aspects of the defendant’s business. Also, the judge had noted that Mr Major did not have set hours, had the authority to control his own methods of work and that much of what he did during a working day was directly or indirectly connected to the defendant’s business.

As a result, the Court of Appeal held that the field of activities and functions entrusted to Mr Major were very wide.

In relation to whether there was sufficient connection between Mr Major’s positon and the assault, Lady Justice Asplin stated that the judge had been wrong to conclude that there was insufficient connection.

It was concluded that Mr Major was purporting to act as managing director and was exercising the very wide remit which had been granted to him despite the time and place of where the assault occurred. It was specifically held that he “… chose to wear his metaphorical managing director’s hat and to deliver a lecture to his subordinates. He was purporting to use his position and drove home his managerial authority, with which he had been entrusted, with the use of blows.”

Also, from an objective viewpoint, Mr Major was “… not merely one of a group of drunken revellers whose conversation had turned to work”. Instead, the attack on the claimant had arisen out of misuse of the position entrusted to him as managing director.

It was agreed that the post-event drinks were not a seamless extension of the Christmas party but it was not just an impromptu drinks party as it had occurred on the same evening of a work event, which Mr Major had planned and paid for on behalf of the defendant. Also, Mr Major had paid for the taxis to the Hilton hotel and had continued to buy drinks for staff, which were paid for by the defendant.

On the basis of the specific facts, it was held that Mr Major was not merely a fellow “reveller” and even if he had taken off his managerial hat upon first arriving at the hotel, he put it back on and abused his position when his managerial decisions were challenged. Also, he had summoned staff and work had been discussed for approximately 45 to 60 minutes prior to the assault taking place.

A direct comparison was made to the circumstances in Mohamud where the employee was purporting to act on behalf of his employer and had metaphorically not taken off his work uniform at the time of the assault. Also, Warren v Henlys Ltd [1948] 2 AII ER 935 was distinguished because the claimant had initially left the scene and the assault happened when he returned to the petrol station with a police officer to pursue a complaint against the defendant’s employee.

It was held that misuse of authority can occur out of hours or when parties are off-duty, particularly if carried out by someone in a senior position. It was held that vicarious liability can attach in these circumstances, as evidenced by the decisions in Bernard v Attorney General of Jamaica [2004] UKPC 47 and Ministry of Defence v Radclyffe [2009] EWCA Civ 635.

As a result, it was held that there was sufficient connection between Mr Major’s field of activities and the assault to render it just for the defendant to be found vicariously liable for his actions.

What this means for you

This decision may be read as casting a blow to employers as they could potentially be found vicariously liable for assaults carried out by employees during after work parties. However, Irwin LJ stated that “… the combination of circumstances will arise very rarely” and it should be noted that vicarious liability will not “…merely arise 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.”

It is clear that each case will be fact specific and the Court of Appeal has clearly indicated that the floodgates have not been opened as a result of this decision.  It should be noted that vicarious liability will not apply just because there is an argument between work colleagues about work matters, which leads to an assault, even if one colleague is in a more senior position within the employer’s business.

In this case, Mr Major was the head honcho and had a very wide ranging role with overall control of the defendant’s business. Also, at time of the assault it was seen that he was purporting to exercise his control and had donned his managerial hat. Perhaps this case would have been decided differently had Mr Major had less control and/or authority within the business as in this case it was held that he was trying to exert his managerial authority and upon it being challenged carried out the assault.

Each case is fact dependent and it can be seen that the Court of Appeal took into account the principles of social justice as the defendant had the means to meet the claim and the claimant was seriously injured through no fault of his own.

It is recommended that employers actively take steps to mitigate the risk of violence in the workplace by reviewing their policies on the issue, ensuring that these policies are brought to the attention of all staff and, where there is violence, taking disciplinary action.

Also, employers should take steps to ensure that all employees have sufficient training in relation to diversity, equal opportunities and anti-discrimination and that sufficient policies are in place in order to try and tackle the onset of any violence in the workplace and to avoid these types of potential claims.

 

 
 

Sophie Houghton
Professional support lawyer

T: 0161 838 4392
D: sophie.houghton@blmlaw.com 

 
 
 

 

 
 

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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