It’s another Friday which means its time for another weekly case law update. Last week, we looked at the “Gay Cake” case and how it could impact the interpretation of discrimination legislation. This week, we look at a case concerning employer’s vicarious liability for its employees and representatives.
The question this week is:
Can an employer be vicariously liable for the acts of an employee at an unplanned after-party following a work night out?
This is a case we previously covered at the High Court during the Christmas Party season, to serve as an example of some issues that might arise. Mr. Bellman, the Claimant, was a manager for Northampton Recruitment Ltd, the Respondent.
The Respondent’s Managing Director was Mr. Major, who had been childhood friends with the Claimant. Following an uneventful Christmas party, the Claimant, Mr. Major, and several other colleagues headed back to the hotel where they were all staying for an impromptu after-party.
During this after-party, the Claimant and Mr. Major became embroiled in an argument about the Respondent’s business. Mr. Major then gathered all the remaining employees of the Respondent and lectured them on his authority.
The Claimant then politely challenged Mr. Major who proceeded to punch him in the face. The Claimant got up and asked Mr. Major not to hurt him. Some other colleagues tried to restrain Mr. Major but he broke free and punched the Claimant in the face again, causing him to hit his head on the hotel’s marble floor.
As a result of the punches, the Claimant sustained severe head injuries including hemorrhages and frontal lobe contusion. This resulted in the Claimant suffering from brain damage and he is no longer capable of managing his own affairs.
The Claimant initiated litigation and, as our previous case reported, the High Court held the Respondent was not liable for Mr. Major’s actions. The reasoning was because the Claimant and Mr. Major were attending a voluntary after-party that was not connected to work.
The Claimant appealed and the Court of Appeal allowed the appeal. The CoA held that the test to determine vicarious liability was twofold: What was Mr. Major’s role; and was there a connection between this role and the conduct?
The CoA reasoned that Mr. Major was the MD of the Respondent and was its most senior employee. As such when he was lecturing staff about his authority, he was acting as the Respondent’s Director. The CoA also noted that despite being voluntary, the party was attended by many of the Respondent’s employees, the taxis to and drinks at the hotel were paid for by the Respondent. It was a follow-on event from the Christmas party, not an impromptu gathering of employees of the Respondent.
The takeaway point:
It appears that vicarious liability can extend to work function after-parties. In this case the fact the parties were discussing work, the punch thrower was the Managing Director and the transport and drinks were paid for by the company meant the company was liable for the behavior of the staff who attend.
This judgment could have an impact on a whole host of employee out-of-hours activity – would a nightcap incident be something employers are liable for? It could also impact the liability for sexual harassment that takes place out of working hours. Often harassing conduct takes place out of work and this judgment suggests that employers would be liable if there is a sufficient connection between the harasser’s role and their conduct.