Firstly, it is important to note that cases involving vicarious liability depend heavily on the facts. Vicarious liability in employment terms is where an Employer is held responsible for the acts or omissions of an Employee in the course of employment.
The test used in these cases asks the question, were the torts so closely connected with the employment that it would be fair and just to hold the Employers vicariously liable?
In the case of Bellman v Northampton Recruitment Ltd an incident took place after a Christmas party. The Managing Director (the MD) of the Respondent company physically attacked an employee leaving him with severe injuries.
The Christmas party took place at a golf club and following the party, around half of the guests moved on to the hotel where they were staying. This was not a planned extension to the Christmas party. The company had decided to pay for all taxi fares for those who attended the party, therefore it paid for the taxis to the hotel as well.
Those who went back to the hotel continued to drink alcohol and the company paid for some drinks. At around 2am a conversation relating to a new starter began. The MD lost his temper and he was then challenged by his to be victim. This challenge was not in an aggressive manner.
The MD began to use his authority and lectured the remaining guests. The MD said he owned the company and he would make the decisions. The MD then swore at and punched the Employee. Other colleagues attempted to hold him back, but he managed to punch the Employee again leaving him with a fractured skull and severe brain damage.
The Employee brought a claim for damages against the company with the belief that it was responsible for the actions of the MD.
In 2016, the High Court decided the Respondent company should not be held vicariously liable for the actions of the MD. It decided the drinks had occurred after the Christmas party and they were separate events. The guests had attended the hotel voluntarily and out of personal choice. Therefore, there was not a sufficient connection between the MD’s role and the assault that took place.
Now in 2018, an appeal has been heard. The Court of Appeal has now overturned the original decision and decided there was a sufficient connection between the MD’s field of activities and the assault itself. The Court of Appeal have decided that the Respondent company should be vicariously liable for the MD’s actions.
The Court of appeal agreed with the High Court with the view that the drinks at the hotel were not a seamless extension of the Christmas party. It did not agree with the High Court view that they were impromptu drinks. The Court of Appeal said these drinks occurred on the same night as the event that was paid for and organised by the company. Despite the venue, the MD chose to show his authority and lecture those under his command. It was not a drunken group of employees that turned to the topic of work. Once the MD had been challenged by the Employee, those attending the drinks at the hotel were present in their roles as staff members and the MD.
The seniority of the MD was a significant factor in this case. The MD had decided to re-assert his authority when he thought it was necessary. This was a factor that contributed to the Court of Appeal deciding there was a sufficient connection between the MD’s field of activities and the assault, and that the assault took place in the course of employment.
The following words of Lord Justice Irwin are important to note:
“This case arose because of the way in which Mr Major (the MD) chose to exert his authority, indeed his dominance as the only real decision-maker, in the company. Hence there is liability.
I do emphasise that this combination of circumstances will arise very rarely. 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. This case is emphatically not authority for the proposition that employers became insurers for violent or other tortious acts by their employees”.