Looking at Vicarious Liability for Employers

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04 Jan 2017

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Following a recent case surrounding vicarious liability, Kaushik Chaudhuri, Senior Litigation Consultant, looks at the facts of the case, the implications, and defines vicarious liability.

Facts of the case

Mr Bellman was a Sales Manager - his job involved the recruitment of HGV drivers for his employer agency and placing them with clients of the agency. He and the Managing Director, Mr Major, had been friends since childhood. The company’s Christmas party took place at a Golf Club in Northamptonshire, which all members of staff were invited to along with their partners. The general understanding was that the taxis home or to the hotel were arranged and paid for by Mr Major. People continued to drink at the hotel. Mr Major paid, or would have paid at check out for at least part of the alcohol consumed. After the party at the Golf Club ended, some of the guests went on to a nearby hotel. A conversation between employees took place about Mr Kelly, a recent appointment. This proved to be a controversial topic and Mr Major, in part fuelled with alcohol, became annoyed and lost his temper. He said that it was his company and he could and would do what he wanted. When the claimant, in a non-aggressive manner, challenged Mr Major, he received a punch in the face along with some expletives in return. Other employees tried to hold Mr Major back but he broke free and hit him a second time. Mr Bellman fell straight back, hitting his head on the ground, and was knocked out, as a result he suffered a very severe traumatic brain injury with subsequent cognitive, emotional and behavioural consequences. He brought a claim for damages against the company relying on the principle of vicarious liability.

What is vicarious liability?

Generally, it is where an employer (i.e. the company) is legally liable for conduct committed by its employee and occurs usually if the employee was acting in the course or scope of his or her employment.

What is the course of employment?

A very broad variety of acts are treated as 'in the course of employment’. Protection is not restricted to situations where the employee performs an act that they are required to do as part of their job. There are generally two questions to be considered:
  • Looking broadly at matters, what were the functions or what was the field of activities entrusted by the employer to the relevant employee? .e. what was the nature of his job?
  • Is there a sufficient connection between the position in which he/she was employed and his/her wrongful conduct to make it right for the employer to be held liable under the principle of social justice?
In fact, for the Courts or Tribunals, it remains very much a fact specific evaluation having regard to the full circumstances of the employment. While consideration of the time and place at which the relevant act occurred will always be relevant, it may not be conclusive and 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.

Is an employer potentially liable at a Christmas party?

A work Christmas party is likely to be regarded as closely connected to employment, especially where there is an expectation to attend. The law casts a wider net when it comes to protection from discrimination under the Equality Act 2010. This is the case even where the relevant act was committed without the employer’s knowledge or approval. The courts have held that the words ‘in the course of employment’ should be interpreted in the sense in which they are employed in everyday speech, and not restrictively because the policy is to deter discrimination and harassment in the workplace through a widening of the net of responsibility beyond the guilty employees themselves. Notwithstanding that, it is likely a Tribunal will consider the guidance of the law as it applies to negligence cases.

Does an employer have any defence against vicarious liability in the case of an employment claim?

It is a defence for an employer (in a discrimination claim) who would otherwise be vicariously liable for the acts of its employees to show that it took all reasonable steps to prevent the employee from committing the act, or from doing anything of that description, commonly referred to as the ‘statutory defence’. Relevant issues include factors such as (a) what the employer did before the event (rather than subsequently), (b) whether the employer has a written equal opportunities policy, (c) whether its managers were given equal opportunities training, (d) whether it had, in the past, disciplined employees who committed acts of discrimination. An employer cannot rely on this defence where it did not take steps which would have been reasonable to take, even though taking those steps in this particular case would have made no difference. However, it can be argued that it was not reasonable to take steps which were most unlikely in any circumstances to have a significant effect on reducing the incidence of discrimination by fellow employees. In practice, this would mean at a minimum having adequate grievance, disciplinary and equal opportunity policies in place, and for larger organisations would mean some degree of equal opportunities training in place or possibly support helplines for employees. Any systems for monitoring discrimination complaints (i.e. the number of grievances or through surveys) and taking remedial steps would also feed into this defence.

What happened in this case?

This was a case brought for breach of duty of care by the employer to the employee and therefore the company had no available defence of it having taken reasonable steps to ensure that the conduct did not occur. It could only rely upon the assertion that the conduct did not occur in the course of employment. In the Bellman case, the employer was not held to be vicariously liable for an assault because it took place at an impromptu drinking session which took place after a work Christmas party. The court held that a line could be drawn between the Christmas party and 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.

What can we learn?

First, impromptu employee gatherings occurring after an official work Christmas party are much less likely to be found to be closely connected to employment. Second, the fact that discussions preceding, and indeed triggering certain conduct are work related, is not enough.  Therefore, it would make sense to remind employees that while the Christmas party is an opportunity for everyone to let their hair down, it remains a work event. Factors that need to be considered when determining vicarious liability are:
  • Who is the protagonist employee, and what is their remit in the context of the circumstances?
  • Is there an expectation that the employee would attend an event or premises, or was it a voluntary and personal choice?
  • Did the incident occur at a work event which was intended to discuss work related matters?
  • Did the company pay for the food and drink?
  • In terms of social justice, is it right to hold that there is a sufficient causal link between the role of the protagonist employee and the incident, such that it would be right to hold the employer responsible?

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