Hello and welcome back to our weekly Case Law Update. Last week’s newsletter had numerous features, including a breakdown of the Autumn Statement which is worth a read.

This week, in the spirit of Christmas, we have decided to give you two cases (we will let you decide whether that spirit is generosity or forced bonhomie). The first of these will be the seasonal topic of Christmas parties and the second is a constructive dismissal and mitigation of losses case.

Last year we did a dedicated feature on regular problems Clients are faced with during Christmas Party season. However, this case covers an issue we did not really cover, vicarious liability.  We must warn you that this case, despite being about Christmas parties, is not at all festive and contains descriptions of horrific injuries.

In an employment context, vicarious liability is when an employer is liable for the acts or omissions of its employees provided the actions or omissions were during the course of employment. The test to prove liability is twofold:

1. Is the relationship between the primary wrongdoer and the party alleged to be liable capable of giving rise to vicarious liability?

2. Is there a sufficiently close connection between the actions/omissions and the employment insofar that it will be fair and just to hold the employer vicariously liable?

Instances when an employer can be vicariously liable include acts of bullying, harassment, discrimination, libel and violence. Furthermore, the employer can still be liable for the acts even if the employee has left since the act took place.

In light of that, today’s question is:

Can an employer be vicariously liable for an assault committed by an employee after its Christmas party has finished?

Mr Bellmen, the Claimant, was employed by Northampton Recruitment Ltd, the Respondent, as a Sales Manager. Mr Major, the Managing Director of the Respondent, had been friends with the Claimant since childhood.

The Respondent’s Christmas party was held at a local golf course. It was by all means an ordinary party with alcohol being consumed by many guests. After the party finished many guests, including the Claimant and Mr Major, went on to an impromptu after party at the Hilton Hotel, where many guests had planned to stay the night.

At 3am, well after the Christmas party had ended, Mr Major assaulted the Claimant following conversations about sport and then an alleged heated discussion about work. He punched him twice in the head and this caused the Claimant to fall and hit his head on the hotel’s marble floor.

The Claimant was taken to A&E and a scan revealed he had suffered a fractured skull, frontal lobe contusion, haemorrhaging and extradural bleeding! To relieve these injuries, he required two operations, including the squirm inducing decompressive craniectomy (thankfully there will not be a bespoke cartoon for this).

As a result of these injuries the Claimant is now brain damaged and suffers from deficits in verbal reasoning, verbal memory and word finding as well as speech and language impairments. He is a protected party who lacks the capacity to manage his affairs and due to these injuries is unlikely to ever return to any paid employment or his pre-injury levels of functioning.

The Claimant decided to sue the Respondent rather than Mr Major, partly due to not wanting to ruin Mr Major’s life, an act that unfortunately was not reciprocated by Mr Major when he decided to punch him.

The Judge however said the Respondent was not liable. Following the above test laid out, he held that the conversation was on social or sporting topics and no objective observer would have seen any connection at all between the Claimant, Mr Major and the Respondent. Furthermore, the assault took place at 3am, well after the original Christmas party had ended, and was attended completely voluntarily by the Claimant and Mr Major, meaning the incident was not connected to their employer.

The takeaway point:

No, in this case the Respondent was not liable because the incident took place long after the Respondent’s party had ended and it was an unplanned after-event. However, had this incident occurred at the party, or, a planned after party, then the Respondent would most likely have been liable. Likewise had signs of this incident become apparent during the Christmas party then the employer may also have been liable.

This case also serves as a reminder that serious injuries can occur when alcohol is flowing and therefore it may be wise to follow our previous advice about staff Christmas parties and issue a conduct statement about what you expect even when the booze is flowing. If you would like any further advice on this topic, please contact us.