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Ruling employer not vicariously liable for assault after Xmas party viewed with caution

Makbool Javaid
christmas

In Bellman v Northampton Recruitment Ltd, after the firm’s Christmas party ended, a number of staff went to a hotel, including Mr Major, the firm’s managing director and Mr Bellman, a sales manager. Some of the staff continued to drink alcohol. After 45-minutes chit chat on a variety of topics, the conversation turned to company business, including plans for the following year. Bellman brought up the appointment of a Mr Kelly, which proved to be controversial. Major, now very intoxicated, became annoyed. He lectured everyone about how he owned the company, that he was in charge, decisions were his to take and that he paid their wages. Bellman, nevertheless, in a non-aggressive manner, challenged Major’s decision about Kelly’s work location.

Major punched Bellman, who fell down. Bellman got back up, bleeding from his left eye area, holding out his hands in a gesture of surrender. Major then hit Bellman again with a sickening blow using his right fist, so that he fell straight back, hitting his head on the ground, rendering him unconscious. Bellman was taken to hospital. A scan revealed he had a fractured skull and he was eventually diagnosed as having suffered very severe traumatic brain injury with subsequent cognitive, emotional and behavioural consequences, with the result that he is unlikely to return to any paid employment.

Bellman sought damages from the employer, on the basis that it was vicariously liable for Major’s actions, i.e. there was a sufficient enough connection between the assault and the nature of Major’s employment to conclude that it would be fair to hold the employer liable even though the employer had committed no wrong. The Judge decided the employer was not vicariously liable because the assault was committed after and not during an organised work social event and it occurred during an impromptu drink, which was not a seamless extension of the Christmas party.

While employers will undoubtedly be appalled by the brutality of the assault and the consequential injuries suffered by Mr Bellman, those breathing a sigh of relief that the employer could not be held liable, should do so with some caution. The Judge appears to have given great weight to the fact that the attack happened after the company Christmas ‘do’ had finished, i.e. some three hours later, during an impromptu drink and where social chit chat took place initially. This it seems, outweighed the evidence that the discussions had turned to detailed work related matters, including the company’s plans for the future, and that just before the attack, Major had gone to great lengths to assert his authority as the managing director.  Decisions as to vicarious liability are always finely balanced. Another judge may not see it the same way and indeed, this judgment may be appealed.

Furthermore, an employer may be able to take disciplinary action against an employee for misconduct outside work where it can be shown that the nature of the unacceptable behaviour makes the employee unsuitable to carry out the job he or she is employed to do and/or has acted in a way which damages the employer’s reputation. Furthermore, under the Equality Act 2010, employers are liable for acts of discrimination and harassment committed by employees in the course of employment. This can include an unlawful act occurring at a social gathering outside work where it can be shown that the circumstances amount to an extension of work, e.g. a leaving ‘do’, a pub lunch to discuss work matters or a company Christmas party.

The aim of this update is to provide summary information and comment on the subject areas covered. In particular, where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented by the parties and the judgments made in every aspect of the case. Click on the links provided to access full details. If no link is provided, contact us for further details.  Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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