The recent High Court decision in the case of Bellman v Northampton Recruitment Ltd (2017) has given further guidance on the scope of vicarious liability. Barrister Robert Spicer reports.
In a workplace context, vicarious liability refers to situations where an employer can be held responsible for the acts or omissions of its employees, if they took place in the course of employment. The law related to vicarious liability is important in the context of health and safety at work in that it may provide employees who have suffered damage with a realistic chance of obtaining compensation.
B worked for Northampton Recruitment Ltd as a sales manager. John Major was the company’s managing director and a shareholder. All members of staff were invited to the company’s Christmas party at a golf club. B went to the party.
After the party, a number of guests went on to a hotel with Major and carried on drinking. The company paid for some of the alcohol consumed. The guests discussed a number of topics including work. At about 3am Major assaulted B in an unprovoked attack. He punched B twice. B struck his head on the floor and suffered serious brain damage. He claimed compensation from the company on the basis of vicarious liability.
The decision of the High Court was as follows.
The company was not liable.
An employer is not liable for an assault by an employee merely because it happened during working hours and is not necessarily free from liability because it happened outside working hours and/or the workplace.
There are two questions to be considered. First, what functions or field of activities were entrusted by the employer to the relevant employee. Second, whether there was a sufficient connection between the position in which he or she was employed and his or her wrongful conduct, to make it right for the employer to be found liable under the principle of social justice. Consideration of the time and place at which the relevant act occurred will always be relevant but may not be conclusive. There must be some greater connection than the mere opportunity to commit the act provided by being in a certain place at a certain time.
The assault was committed after and not during an organised work social event.
The managing director could not always be considered to be on duty. He had a wide range of managerial duties.
There was a temporal and substantive difference between the Christmas party and the drinks at the hotel. The spontaneous post-event drink at the hotel could not be seen as a seamless extension of the Christmas party. What took place at 3am at the hotel was a drunken discussion which arose from a personal choice to have yet more alcohol after a works event had ended. Given the time and place, no objective observer would have seen any connection with the jobs of the employees present.
There was an insufficient connection between the position in which the managing director was employed and the assault to make it right for the company to be held liable.
That the conversation veered to a discussion about work could not provide a sufficient connection to support a finding of vicarious liability against the company which employed them.
This decision is the latest in a line of cases developing the concept of vicarious liability in the context of workplace safety.
A leading earlier example is the Court of Appeal decision in Majrowski v Guy’s and St Thomas’s NHS Trust (2005). M was employed by G as a clinical co-ordinator. He alleged that he had been bullied by his departmental manager. He claimed compensation for harassment from his employer on the basis of vicarious liability. The Court of Appeal found in favour of M and made the following general points.
Vicarious liability is legal responsibility imposed on an employer, although the employer is free from blame, for a tort (civil wrong) committed in the course of employment.
True vicarious liability is liability for an employee’s unauthorised, or not negligently permitted, unlawful mode of doing an unauthorised act in the course of employment.
For such liability to apply, the act must be so closely connected with what the employee was authorised to do, that it would be fair and just to regard it as a mode, even if an improper one, of doing it.
In deciding whether the connection is sufficiently close, the court has to balance the social interest in furnishing an innocent tort victim with a remedy against a financially responsible defendant, with the need to avoid foisting an undue burden on a business enterprise.
Vicarious liability is loss distribution device used on grounds of social and economic policy.
Another example, involving an assault, is the Court of Appeal decision in Fennelly v Connex South Eastern (2001). F was involved in an altercation with a ticket inspector employed by C. This led to the inspector putting F in a headlock and dragging him down some stairs. F brought proceedings against C on the basis that C was vicariously liable for the actions of its employee.
At first instance the claim was dismissed on the basis that the inspector had acted outside the course of his employment. F appealed to the Court of Appeal. That court allowed the appeal and made the following points.
Whether an action is taken in the course of employment requires looking at the job being done by the employee in general terms, not by narrowly dividing each step and task which he performs and then asking whether each separate step was authorised by the employer.
In the present case, the assault sprang directly out of the altercation which was being conducted by the employee on behalf of his employer, dealing as he thought appropriately with a passenger who was not reacting as the employer would have wished. It would not have occurred without the ticket inspector’s power to inspect tickets on the employer’s premises. As a matter of common sense, it was all part of the same incident.
The Fennelly case can be distinguished from the Bellmann case in that the assault in Bellmann was committed completely outside the course of employment.