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Vicarious liability | The worst Christmas gift for employers
Written on 7 November 2023
When throwing a work Christmas party, employers have a long list of things to plan: the venue, food, drinks, music, entertainment, decoration, transport.
However, it can be easy to forget that you have extra responsibilities, particularly when it comes to your staff and their behaviour. If this basic responsibility is forgotten, employers can get into all sorts of trouble.
Vicarious liability
As an employer, the most important thing you need to remember when planning your annual Christmas party is that you can be held liable for the actions and comments of your staff at work events, if it occurs “in the course of employment”.
This means that even if the party takes place outside normal working hours and away from the workplace, it still counts as a work-related event. You can assume that, in the eyes of the law, the party will be considered “in the course of employment” and as such, employers will be held responsible for their staff’s behaviour.
It might not seem fair, but employers can be held liable for any acts of discrimination, harassment or victimisation carried out by their employees, irrespective of whether the employer knew or approved the action or comment constituting harassment.
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An example: Bellman v Northampton Recruitment Ltd
Back in December 2011, Northampton Recruitment Ltd held a work Christmas party for its staff at a golf club. Following this, some of the guests went to a hotel bar. Mr Major, the Managing Director of Northampton Recruitment Ltd, and Mr Bellman, a sales manager, were amongst the group.
One of the topics of conversation was about a new hire. Mr Major lost his temper and lectured the group, explaining that he was the owner, made the decisions and paid their wages. When challenged in a non-aggressive way by Mr Bellman, Mr Major swore at him and punched him twice. This resulted in Mr Bellman suffering from traumatic brain damage.
Mr Bellman proceeded to make a claim for damages, arguing that the recruitment agency was vicariously liable for Mr Major’s conduct.
The High Court ruled that the recruitment agency was not vicariously liable for the Managing Director’s assault on Mr Bellman.
It considered that the drinks at the hotel were not planned, that they had occurred at a different location to the party’s venue, and that the guests were there by “entirely and voluntary and personal choices”.
They found that there was not enough of a connection between Mr Major’s role as the managing director and the assault.
Court of Appeal ruling
The Court of Appeal, however, didn’t see it the same way. It followed the Supreme Court judgment in Mohamud v W M Morrison Supermarkets PLC, which set out the following test:
- What are the “field of activities” entrusted by the employer to the employee?
- Is there enough of a connection between the “field of activities” and the wrongful conduct to make it right for the employer to be held vicariously liable?
The Court of Appeal noted that “the unscheduled drinking session was not a seamless extension of the Christmas party… The venue had changed, there was a temporal gap between party and drinks, albeit relatively short, and attendance at the drinking session was voluntary. However, it seems to me that the drinking session must be seen against the background or in the context of the evening’s events… The drinks occurred on the same evening as the work event which had been paid for and orchestrated by Mr Major on behalf of Northampton Recruitment Ltd. Mr Major had already been fulfilling his managerial duties for a large part of the evening. Having orchestrated the party, he organised and paid for the taxis to the hotel and continued to provide drinks which were to be paid for by Northampton Recruitment Ltd”.
Christmas Party Memo
Prevention is always better than cure. If you’re holding a party to reward your hard-working employees, download a copy of our Christmas party memo to distribute to staff in advance.
"Sufficient connection"
The Court concluded: “In summary, it seems to me that given the whole context, and despite the time and place at which the assault occurred, Mr Major’s position of seniority persisted and was a significant factor. He was in a dominant position and had a supervisory role which enabled him to assert his authority over the staff who were present…”
Therefore, in this case, it deemed that there was sufficient connection between Mr Major’s field of activities and the assault to hold Northampton Recruitment Ltd vicariously liable.
Lord Justice Irwin made sure to highlight that the facts of this case were unusual and such cases are likely to be rare.
Cases do indeed turn on their facts, but this one does act as a reminder to employers that they can be held vicariously liable for their employees’ conduct at work events, contrary to common misconception.
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Fixed-fee support through festive HR hurdles
Defending an Employment Tribunal claim can be the worst possible start to the New Year.
So, if you’re dealing with a misconduct matter arising from the festive season, or you’d like advice in the lead up to your Christmas party to minimise the risk of issues later on, speak to our Employment Law and HR specialists at the earliest opportunity for straightforward, practical advice.
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