Simon Anderson considers the recent Court of Appeal decision in Bellman v Northampton Recruitment Limited [2018] EWCA Civ 2214

Can an employer be held vicariously liable for an assault by a director that takes place on an employee out of work time and off the premises? Yes, according to the Court of Appeal in Bellman v Northampton Recruitment Limited [2018] EWCA Civ 2214.

The Facts

On 16 December 2011, Northampton Recruitment Limited (‘NR’) held a Christmas party for its office staff at the Collingtree Golf Club in Northampton. At around midnight the Managing Director, Mr Major, paid for taxis to take all those who wanted to go to the Hilton Hotel for further drinks. This was not a pre-planned extension and Mr Bellman went along entirely voluntarily. On arrival the group sat in the hotel lobby and most continued to drink alcohol and to discuss a variety of topics. The conversation eventually turned to work and Mr Major, who was by now significantly inebriated, became annoyed at being questioned about company business. He responded by attacking Mr Bellman and causing him a profoundly life altering brain injury.

The Law

The most recent and authoritative distillation of the relevant legal principles to be applied in this area of the law is to be found in the judgment of Lord Toulson in the Supreme Court in Mohamud v W M Morrison Supermarkets PLC [2016] AC 677. In the simplest terms, the court has to consider two matters.

1. The first question is what functions or “field of activities” have been entrusted by the employer to the employee, or, in everyday language, what was the nature of his job. This question must be addressed broadly.
2. Secondly, the court must decide whether there was sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice.

The Decision

At first instance the judge concluded that the hotel drinking session was unconnected with the Defendant’s business, and that those who attended were on a frolic of their own. Moreover, NR should not be regarded as an involuntary insurer in respect of its director’s unauthorised behaviour. The temporal gap between the Christmas party and the drinking session was a decisive factor.

The Court of Appeal unanimously allowed the appeal. In giving what was in effect the sole judgment, Lady Justice Asplin held that it is not a question of what the employee was expressly authorised to do. The expression “within the field of activities” assigned to the employee is helpful. It conjures a wider range of conduct than acts done in furtherance of the employee’s employment. Looking at the matter objectively, therefore, Mr Major was on company business.

The more pressing issue was whether there was a sufficient connection between Mr Major’s role and his tort as to make it fair to impose liability? Although the party and the drinking session was not a single seamless event and attendance was voluntary, Mr Major was not merely a fellow reveller. He chose to wear his metaphorical ‘managing director’s hat’. Looked at objectively, he was purporting to exercise his authority over his subordinates and was not merely one of a group of drunken revellers whose conversation had turned to work. In these unusual circumstances, therefore, it was just to impose liability.

Analysis

Mr Bellman’s life would not have been so brutally transformed had all been sober. Shakespeare is apt to cite in such tragic circumstances – “That men should put an enemy in their mouths to steal away their brains.” (Othello Act II, Scene iii).

Lady Justice Asplin made the point that the facts were a long way from a social event at which all participants are equal and attend as casual friends (i.e. a weekend sports game). In such circumstances, even if discussions turn to work and a more senior employee assaults another junior colleague, looked at objectively, they have all attended as equals. The participants in the drinking session on the other hand, had attended the Christmas party in their capacity as employees.

As Lord Justice Irwin put it, what was crucial here was that the discussions about work became an exercise in laying down the law by Mr Major, indeed an explicit assertion of his authority, vehemently and crudely expressed by him, with the intention of quelling dissent. That exercise of authority was something he was entitled to carry out if he chose to do so, and however unwise it may have been to do so in such circumstances, it did arise from the “field of activity” assigned to him. However, he was also at pains to point out that this case is emphatically not authority for the proposition that employers became insurers for violent or other tortious acts by their employees.

As Lord Phillips said in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 “The law of vicarious liability is on the move”. This was well illustrated by Barclays Bank Plc v Various Claimants [2018] EWCA Civ 1670 in which Lord Justice Irwin upheld the first instance decision of Mrs Justice Nicola Davies that an employer could be liable for sexual assaults on employees that took place at the home address of an independent doctor.

What both of these decisions illustrate well is that the scope of liability has expanded to encompass unauthorised activities that take place away from the workplace. It is yet to be seen where the factual boundary will be drawn in the modern era, although it seems inevitable that the law will at some point will have to consider online behaviour.