When Christmas drinks go wrong – Vicarious liability and the ‘course of employment’ test in the High Court

By Prof Paula Giliker, Professor in Comparative Law (University of Bristol Law School).

The office Christmas party is something many of us will have enjoyed recently.  In the words of Judge Cotter QC in the recent High Court decision in Bellman v Northampton Recruitment Ltd [2016] EWHC 3104 (QB), it is an occasion “no doubted dreaded by some and an annual highlight for others” (para 14).  Needless to say, in most cases, alcohol will be freely flowing and sadly things may be said or done regretted bitterly the next day.

In the case of the Northampton Recruitment Ltd 2011 Christmas party, it was not the party itself (held at the Collingtree Golf Club) which proved eventful, but the “after party” held in the lobby of the Collingtree Hilton Hotel in the course of which the managing director of the company, John Major, punched an employee (Clive Bellman) twice during the course of a disagreement at 3am. Mr Bellman’s head hit the marble floor, leading to brain damage. By the time of the trial, his condition was such that he was not able to litigate or manage his affairs and brought his claim as a protected party. To add to the tragedy, the parties in question had been friends since childhood. The assault, no doubt fuelled by alcohol, had been provoked by a work-related dispute, although discussions at the Hilton Bar had covered a variety of matters. The question for the court was whether the company would be held vicariously liable for the tort of its managing director.

Vicarious liability holds an employer strictly liable for the torts of its employees, but will only arise where an employee (here Major) commits a tort (battery) “in the course of his employment”.  Recent case-law has interpreted the test for course of employment broadly. Lord Toulson in the leading case of Mohamud v Wm Morrison Supermarkets Plc [2016] UKSC 11; [2016] A.C. 677 at paras 44-45 stated that the court should consider two matters:

  •  What are the functions or “field of activities” entrusted by the employer to the employee, or, in everyday language, what was the nature of his job?
  • Is there a sufficient connection between the position in which the employee was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice?

In Mohamud (previously discussed here), an assault by a petrol kiosk attendant on a customer was deemed “in the course of employment”. The Supreme Court found that it was closely connected to Khan’s job to attend to customers and answer their inquiries, albeit performed in a foul-mouthed and violent manner. It did not matter that the attendant had left his kiosk and followed Mr Mohamud out onto the petrol station forecourt and then assaulted him – it was a seamless episode (para 47). Lord Toulson contrasted Mohamud with the earlier case of Warren v Henlys Ltd [1948] 2 All E.R. 935.  Here the attack by a petrol attendant on a customer had not been found to be “in the course of his employment”.  In Warren, there had been a dispute between the petrol attendant and a customer. The customer had paid for his petrol and left, but then approached a police officer and returned with the officer to the petrol station. Dissatisfied with the officer’s intervention, the customer told the attendant that he would report him to his employer, whereupon the attendant punched the customer in the face, knocking him to the ground. In the view of Lord Toulson, by the time that the assault happened, the customer’s business with the petrol station had ended. The test was one of close connection and while it existed in Mohamud, it did not in Warren.

This subtle distinction – criticised by a number of commentators such as Phillip Morgan ([2016] C.L.J. 202 at 205) and Andrew J Bell ((2016) 32 P.N. 153 at 157) who argue that it is far too subtle – was raised again in the Bellman case.  The judge drew a distinction between actions occurring during the Christmas party itself – considered an incidental benefit of employment – and any subsequent informal gathering. At the party, Major would be acting in the course of employment- it was an occasion to motivate his fellow workers and it was part of his job to oversee its smooth running and maintain his managerial authority. Matters changed, however, when the employees left the organised work social event and gathered informally for late night drinks. No-one had been obliged to attend and the judge refused to treat a “spontaneous post event drink at the hotel” as a seamless extension of the Christmas party.

There was a temporal and a substantive difference between the Christmas party at the Golf Club and the drinks at the Hilton Hotel. It did not matter (in the judge’s view) whether the taxis back to the hotel were organised and probably paid for by the company in that the employees had all expected that their employer would pick up the tab for the taxis home at the end of the evening. Equally the fact that the assault was triggered by a work-related dispute did not, in his mind, have the effect in itself of changing a conversation or interaction between fellow workers into something in the course of employment, regardless of the surrounding circumstances. If this were so, he argued, any mention of work during a game of golf between work mates could arguably provide a “close connection” for any assault which later took place. In the words of the judge:

Standing back and considering matters broadly, what was taking place at 3.00 a.m. at the hotel was a drunken discussion that rose after a personal choice to have yet further alcohol long after a works event had ended … That [the conversation] 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 discreet early hours drinking session of a very different nature to the Christmas party and unconnected with the Defendant’s business. To use a hackneyed expression akin to “a frolic” of their own (para 80).

It is submitted that the case itself was not so straightforward. Indeed, the judgment in Bellman demonstrates, once again, that despite numerous trips to the Supreme Court, the “course of employment” test remains difficult to apply in practice. As the judge acknowledged, the test is fact dependent and issues here such as the fact that the assault was triggered by a workplace dispute, the company was still paying for taxis and (to a certain degree) drinks and that it involved a post works-party gathering all render the application of the Mohamud two-stage test stated above less than clear. The judge’s reliance on Warren is equally a matter for concern. Vicarious liability, according to Warren, does not arise when you can divide events into two distinct incidents: in that case, the purchase of petrol and the police complaint. The problem with such analysis is that it seems artificial – can the incidents be so easily divided when, in Bellman, the assault was triggered by a work-based dispute and in Warren by a threat to report the employee to his employer for his earlier conduct? Is this consistent with Lord Toulson’s broad notion of “field of activities”?

The judge in Bellman concluded that “The rule [of vicarious liability] must have proper boundaries; it is not endless … Sympathy with [Mr Bellman’s] position cannot impact upon the proper application of principle” (paras 81-82). I would strongly agree. The problem with the Supreme Court decision in Mohamud is that the lower courts are still struggling to ascertain these boundaries and are unlikely to find much guidance through reference to “social justice”. Can an after-party largely funded by the employer really be clearly distinguished from the risks of over-indulgence at a staff Christmas party? Or should employers now think twice before buying drinks at any post-Christmas party events in future? As a lawyer, my instinct would definitely be for the latter. Bellman therefore provides another example of the lack of clarity and predictability inherent in the modern law of vicarious liability. It remains to be seen, bearing in mind the severity of Mr Bellman’s injuries, whether this decision will be appealed.

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