When Christmas parties get out of hand

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.

Paul Scholey - Senior Partner

For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.

Reduction in response time to government consultations

We often, as a firm, voice our collective opinion on government proposals. In recent years, we have spoken out on a number of issues, ranging from the implementation of a cap on trainee solicitors’ wages, to the Jackson Reforms in the field of Personal Injury law and the now imminent introduction of fees in the Employment Tribunals.

We therefore speak from years of experience when we say that clear and considered responses to consultations require a great deal of research and preparation, which can often take several months.

We were therefore alarmed to hear in recent weeks that the government has now introduced new guidance to shorten the twelve week period for which ministers were previously required to consult the public on government proposals to a mere two weeks.

This clearly will make it extremely difficult for interested parties to gather evidence and prepare a reasoned and informed response to policy changes that directly affect us all.

The upshot of this is that, potentially, sections of the public, in particular those with access to fewer resources who will no doubt struggle to meet the two week deadline, will essentially be left without a voice to challenge government policy.

This appears to us to be nothing more than an attempt by the government to suppress opposition.

To place the effect of reducing the consultation period into context, in their response to the reduction of consultation periods the Institute of Employment Rights cite the Enterprise and Regulatory Reform Bill as an example whereby the government introduced, in their words, a “technical amendment” to existing legislation, without consulting the public. This “technical amendment” was to section 47 of the Health and Safety at Work Act 1974, the significance of which is far-reaching as it overturns the law imposing employers’ strict liability for the health and safety of their employees, which has been in effect for 114 years.

The implications of this are that various existing personal injury clients of our firm who suffer from life-long, incapacitating injuries, including one client who lost an eye, and potentially a career, due to faulty work equipment, would in future have been prevented from bringing their claims against their employer.

We therefore share the view of the Institute of Employment Rights and have supported their ongoing petition to the Secondary Legislation Scrutiny Committee to voice our opposition to the government’s blatant attempt to stifle the voice of opposition.

Christopher Ridley - Solicitor

For further information on Employment Rights, please visit our website or call 0113 245 0733 and ask to speak with our Employment Rights team.