It is the season for Christmas parties and many workplaces will hold events in pubs or hotels where alcohol is likely to fuel the proceedings.
That is the context for the latest in a series of court decisions concerning the liability of employers for the actions of their employees.
When I was first in practice my clients would often find that an employer argued that they ought not to be liable for what other employees had (negligently or wilfully) done – on the basis that such employees were “on a frolic of their own”. The employer’s defence would be that they ought not to be held responsible for things that were not done in the ordinary course of employment. So a bouncer using more than reasonable force to eject someone from a nightclub might result in a successful claim against the employer – since the bouncer was doing something that he was employed to do, even if he overdid it. But the weaker the link between work and an employee’s conduct, the more likely the employer’s defence would be to succeed.
This all changed fairly dramatically in the Morrisons case this year when the supermarket was held liable for catastrophic injuries suffered by a customer following a very violent and quite unprovoked attack upon him by an employee at the supermarket’s petrol station. It was just, said the Supreme Court, to hold the employer liable because of the “connection” between the employee’s work and the assault. But that connection appears to have been little more than the fact that the employee was physically present at the place of work and inevitably going to come into contact with customers.
So it is somewhat surprising, then, to see the latest case – Bellman v Northampton Recruitment – taking a rather different tack in relation to an incident of violent behaviour at a Christmas party.
Mr Bellman was assaulted by the owner/manager of the company for which he worked, following an argument at a social event.
Now, it is commonly accepted that the “workplace” does not end at the office door. An employer can end up liable for, say, sexual harassment that happens when colleagues go together to the pub after work.
In Bellman the Claimant and colleagues had been to a Christmas party and thereafter an impromptu drinking session took place until the early hours.
Tragically Mr Bellman suffered a brain injury following an assault upon him by his manager. He will not work again.
The High Court has held that the company is not liable to compensate Mr Bellman.
The Judge took the view that there was not a sufficiently close connection between the “after party” and the Claimant’s employment. This despite the fact that this event immediately followed the Christmas party, involved the Claimant, his boss and their colleagues, and the violence was the upshot of an argument that at least in part related to the manager’s assertion of his absolute authority at work.
Since the manager himself is uninsured and not in a financial position to meet a substantial compensation payment if a claim against him succeeds, Mr Bellman’s main hope for a remedy has to lie in a claim against the employer – which of course has the benefit of employer’s liability insurance.
So Mr Bellman at present is without a remedy against the firm; and his remedy against his manager is not worth pursuing.
I find the decision in Bellman surprising, having regard to the Supreme Court’s view in Morrisons. It seems to me that there was here altogether just as much of a “close connection” – indeed, arguably a greater one (bearing in mind the context of the argument that erupted) – than in the earlier case.
Claimant will, rightly, look for “deep pockets”. It seems to me not unreasonable that an employee facing career ending injuries ought to have the opportunity to take advantage of insurance that can spread the cost of compensation across the community of employers generally. That’s the whole point of insurance: so that the many can help the few. If the Supreme Court’s view – rightly, in my opinion – is that a “connection” with work needs be made out in only pretty general terms, then that has to be a good thing for deserving Claimants in the general scheme of things and is not going to put the cost of employer’s liability insurance through the roof. I will revisit the point if, as I suspect, Bellman is pursued on appeal.