In the recent case of Bellman v Northampton Recruitment Ltd [2016], the High Court held that a Company was not vicariously liable for a tort committed by an employee (its Managing Director (“MD”)), of violent assault on a colleague at an “impromptu” drinking session straight after the Company’s Christmas Party.

Mr Major the MD of Northampton Recruitment Ltd hired his childhood friend Mr Bellman as a sales manager. In 2011, the Christmas party took place, following which remaining employees decided to go for drinks at a hotel “impromptu”. Here, at around 2am, conversation went from social to work-related and Mr major lost his temper at Mr Bellman’s opinion on where an employee should be located. Mr Major punched Mr Bellman twice, fracturing his skull and rendering him unconscious leaving him with severe brain damage and unable to work again.

The High Court assessed the facts of the case and found that the employer was not responsible. Defining factors were that the drinks were separate from the Christmas party itself and at a separate location, there were employees’ partners and other guests present as well as employees, and the conversation had been largely on non-work-related topics.
The courts found that there was a temporal and substantive difference between the two events and that the drinks were not a “seamless extension” of the former.

Neither the fact that the company was expected to pay for some or all of the drinks, nor the fact that the attack was triggered by a work-related discussion, in which the Managing Director felt that his authority was being challenged, were sufficient to outweigh the other factors and bring the encounter within the course of his employment. The incident had arisen in the context of “entirely voluntary and personal choices” by those present, to engage in a heavy drinking session. A key finding in the court’s reasoning was that this was an “impromptu drink”.
The test in instances such as these is whether the tort was “so closely connected with the employment that it would be fair and just to hold the employers vicariously liable”.

It is often misunderstood by companies that if an incident does not occur during working hours and outside the workplace, then it is not their responsibility. However, if an employee can show that an incident happened “in the course of employment” then a company could well be held responsible (for example, at the company’s client’s party, at work drinks in different circumstances).

Given the high stakes in this case (which concerns what seems to be catastrophic career-ending injury with no alternative source of compensation) and the finely balanced argument on whether the close connection test was satisfied, it seems entirely possible that an appeal could be successful.

Employers should nevertheless exercise caution. It cannot sigh in relief as there still remains to be cases recently where the conduct of an employee was deemed to be the responsibility of the employer vicariously.
For further information, please contact Koichiro Nakada – Head of Japan Business Group (koichiro.nakada@lewissilkin.com) and Yoko Nakada - Senior Associate, Deputy Head of Japan Business Group (yoko.nakada@lewissilkin.com).
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