The Hangover – vicarious liability for after-party assault
At some point in the next two months it is statistically inescapable that almost every employer in the UK will receive some worthy but deeply off-putting law firm flier about all the legal risks which can possibly be extracted from the office Christmas party. This is not it.
Last week’s decision in Bellman –v- Northampton Recruitment Limited concerned how far an employer could be vicariously liable for events not at the Christmas party but after it, and is a stark illustration of just how small are the facts on which the imposition, or not, of substantial vicarious liability may turn.
NR’s Christmas do at a local golf club was attended by almost all its staff, a couple of guests and some other halves. At it in particular were Mr Major, shareholder, director and “controlling mind” of NR and another of its employees, Mr Bellman. At Major’s say so, NR paid for drinks, taxis and accommodation at a nearby hotel for those of its guests who were staying over. As usual at these things, the conversation drifted in and out of work chat over the course of the evening and it seemed that a good time was had by all. When the golf club finally drew stumps on the event and the evening was officially over, Major offered all those who wanted it a taxi back to the hotel bar where they could carry on drinking at NR’s expense. This offer was taken up by about half its staff.
Back at the hotel all was well until Bellman gently but unwisely chose to raise with Major the question of Mr Kelly, a new hire made by NR whose salary was reputed to be much higher than those of his colleagues. In the Court of Appeal’s words: “Mr Major became annoyed at being questioned about Mr Kelly’s appointment ….he “summoned” the remaining company employees and began to lecture them on how he owned the company, that he was in charge and that he would do what he wanted to do; that the decisions were his to take and that he paid their wages”. When Bellman queried this in what the Judge found expressly was a non-aggressive manner, Major punched him twice in the face, knocking him to the ground and causing him significant and permanent brain damage.
To make NR vicariously responsible for this, Bellman had to show that Major’s actions were in the course of, or had a sufficiently close connection to, his employment with it. The High Court had concluded not – after all, the “official” Christmas party was well over by then, the extended session in the hotel bar was clearly voluntary, many of the staff were long in bed and much of the conversation had been about matters sporting and social, nothing to do with work. In addition, the High Court had concluded that even though Major did have a “wide range and duration of activities” it could not be said that he therefore always had to be considered as on duty solely because he was in the company of other employees. In other words, by the time of his assault on Bellman, Major was just another “reveller” and not carrying out any function of his job.
The Court of Appeal disagreed. It noted that if anyone were responsible for the management of the party and of the later drinks, it was Major. He had given NR’s consent to pay for the taxis to the hotel and the drinks when they got there. Most significant, however, was that it was in the context of reinforcing his authority over the others and meeting what he saw as a challenge to it, that he assaulted Bellman. He was “not merely one of a group of drunken revellers whose conversation had turned to work”. Separately “even if Major had taken off his managerial hat when he first arrived at the hotel….he chose to don it once more ….when his managerial decisions were challenged” and then he “drove home his managerial authority ….with the use of blows”. That was enough to make NR liable.
Lessons for employers
- The Court of Appeal stressed that these were unusual facts, and that “liability will not arise merely because there is an argument about work matters between colleagues which leads to an assault, even when one employee is markedly senior to the other”.
- The issue is whether the assault takes place in the exercise of managerial authority, however misguided that exercise; and
- So as a counter to all those seasonal fliers, there will be little risk of legal exposure even if your festive punch-up takes place during the Christmas party itself, so long as it is not connected with work (the party then providing the combatants merely with venue and opportunity, but not cause). Equally, however, you may well be exposed even at any totally unofficial after-party if the assault relates to one employee’s imposition of any form of managerial authority over the other. The usual corporate injunction for such events to enjoy the evening and forget about work for once seems particularly well judged.