With the Christmas party season approaching Bellman v. Northampton Recruitment Limited [2018] EWCA Civ 2214 is a timely reminder concerning the potential perils of office parties.
Background
B worked as a sales manager for a company which runs franchise offices for Drivers Direct, a national HGV drivers’ agency.
NR had three directors and shareholders. One of them, Mr Major, was also the managing director. He was found to be very much “in charge” in all aspects of the business, and the company's directing mind.
On 16 December 2011 NR held a staff Christmas party at a local golf club. About 10 members of staff and their partners attended, including B. There were also a few invited guests and Mr Major’s children. In all there were 24 attendees.
As the official party was drawing to a close, Mr Major paid for taxis to take all those who wanted to go on to the Hilton hotel for more drinks. About 15 individuals took up the offer including six members of staff. B and his partner were included in the party.
At about 3am the conversation turned to work related matters. The discussion became animated when the assembled employees (including Mr Major) started to discuss the recent decision to recruit a new employee. Mr Major became extremely aggressive, saying that he was in charge, and that he made all the decisions and so forth.
Mr Major then punched B who fell down. When B got up he was bleeding from his left eye area. Despite attempts to hold him back, Mr Major then went over to B and punched him again. B fell backwards hitting his head on the ground.
The fall caused B to suffer from traumatic brain damage.
The High Court
The issue for the Court was whether the company (NR) could be held vicariously liable in circumstances where the employee’s wrongful conduct (Mr Major's) occurred both outside the workplace, and out of office hours.
The Judge summarised as follows:
“standing back and considering matters broadly, what was taking place at 3am at the hotel was a drunken discussion that arose after a personal choice to have yet further alcohol long after a works event had ended. Given the time and place, when the conservation was, as it was for a significant time, on social or sporting topics, no objective observer would have seen any connection at all with the jobs of those employees of the defendant present. That it then veered into a discussion about work cannot provide a sufficient connection to support a finding of vicarious liability against the company that employed them. It was, or without any doubt became, an entirely independent voluntary, and discrete early hours drinking session of a very different nature to the Christmas party and unconnected with the defendant’s business."
Court of Appeal
The grounds of appeal focussed on whether there was insufficient connection between Mr Major’s employed position and his wrongful conduct. It was asserted that the High Court Judge failed to take account of:
- the nature of Mr Major’s job as managing director and the power entrusted in him over subordinate employees;
- the fact that the wrongful conduct was triggered by a challenge to his managerial authority;
- whether the conduct was personal rather than connected to Mr Major’s employment;
- the risk that the wrongful conduct was enhanced by the company’s supply of alcohol; and
- the fact that the imposition of vicarious liability for conduct in such circumstances would be potentially uninsurable and would place an undue burden on the employer.
Lord Toulson in Mohamud v W M Morrison Supermarkets PLC [2016] AC 677 said the Courts needed to consider two matters in order to determine vicarious liability in these sorts of cases:
- The functions or “field of activities” which have been entrusted by the employer to the employee; and
- Whether there is a sufficient connection between the position in which the employee was employed, and his wrongful conduct in order to make it right for the employer to be held liable.
So applying the first test was Mr Major just a fellow reveller (and not acting in the course of his employment), or was he acting within the field of his activities assigned to him as managing director when he lectured a group of employees at 3am, in circumstances whereby both he and others were seriously inebriated. The High Court Judge had previously found Mr Major was acting as such, with the result the Court of Appeal didn’t need to interfere with this finding.
Regarding second test, the Court of Appeal held that it was wrong for the High Court Judge to have found there was insufficient connection between Mr Major’s field of activities and the assault on B at 3am.
Lady Justice Asplin found that Mr Major was purporting to use his position as managing director to drive home his managerial authority. Her ladyship felt that the attack arose out of a misuse of the position entrusted to Mr Major as managing director.
Accordingly the appeal was upheld and NR was found to be vicariously liable.
Comment
As Irwin LJ pointed out, liability will not arise merely because there is an argument about work matters between colleagues which leads to an assault, even when one colleague is markedly more senior than another. He also emphasised that this case was not authority for the proposition that employers become insurers for violent or other tortious acts by their employees.
The problem in this case seems to be the view taken by the Court of Appeal that Mr Major remained extremely assertive when the party carried on at the hotel - laying down the law, with the intention of quelling dissent as Irwin LJ put it.
The case is, of course, extremely fact sensitive and might be confined to cases where one has very senior managers, or business owners who hold enormous power and then conduct themselves in a way which amounts to an abuse of power. However, it does highlight (as always) the potentially perilous nature of office parties and alcohol.
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