Employer’s liability for assault following a Christmas party?

It is widely reported every year that employment law rights and Christmas parties often collide in a frequently drunken sequence of events that ends up either in an employment tribunal, with a large compensation payment by the employer, or both. This time last year I wrote about a reported decline in “risky” office parties and, a month earlier, about a case resulting from fairly outrageous behaviour by MBNA employees at Chester races.

This year the facts of the case I’m reporting revolve around a Christmas party but stray away from conventional employment law into the area of the potential liability of an employer for the acts of its employees in the context of personal injury.

On 1 December the High Court handed down its judgment in the case of Bellman v Northampton Recruitment Limited, which was heard from 24 to 26 November. It is a sad story about the aftermath of a Christmas party which got thoroughly out of hand and resulted in the Claimant, Mr Bellman, suffering brain injury which was so severe that he has no recollection of the incident and had to appear in court by a litigation friend.

John Major, his wife Beverley and Michael Geoghehan were directors and shareholders in Northampton Recruitment Limited which ran franchised offices of Drivers Direct, a temp agency for HGV drivers. (Following the assault the Company went into liquidation in June 2012 and was dissolved in October 2013.) The Claimant, Mr Bellman, and Mr Major had been friends since childhood and in 2010 Mr Major offered Mr Bellman the post of sales manager which he accepted in November of that year. He was on a daily rate of £80 plus commission. In 2011 the Company’s Christmas party took place at the Collingtree Golf Club on 17 December. 24 people were in attendance. Alcohol was freely available. One witness recalled that he had about 12 pints and a couple of Jack Daniels in the course of the evening. When the party finished about half of those in attendance decided to continue at the nearby Hilton Hotel.

At about 3.00 a.m. and reportedly unprovoked, Mr Major punched Mr Bellman in the face. Mr Bellman got up and Mr Major punched him again. This time Mr Bellman “went straight back like a falling tree” and hit the marble floor. He was bleeding from his nose, ears and mouth. One employee in attendance thought that he was dead. He was taken to local A&E and then moved on to the specialist unit at John Radcliffe Hospital where he was diagnosed with various brain injuries.

Fortunately he survived but subsequently suffered from numerous symptoms including headaches, deficits in verbal reasoning, speech and language impairment. He was diagnosed with “very severe traumatic brain injury with subsequent cognitive, emotional and behavioural consequences”. He is unlikely to return to any form of paid employment.

Mr Major was arrested and charged with GBH. However, the criminal prosecution did not proceed as a result of a mistake made by the CPS.

In the High Court Judge Cotter QC described it as “…a brutal assault comprising…two phases separated by Mr Major being removed and held back by others, breaking free and returning to strike at a time when Mr Bellman, rather than being aggressive, was pleading with him to see sense.” The claim was reported to be valued at £1 million.

What is intriguing from a legal perspective is that the personal injury claim brought on behalf of Mr Bellman was directed not to Mr Major but to the employer, Northampton Recruitment Limited (and thereby for all practical purposes against the insurer of the insolvent company).

Age Discrimination & Permanent Health Insurance

Since the abolition of the default retirement age some time ago, questions have arisen regarding what happens to employee benefits should they decide to remain in employment over a certain age.

In the recent case of Smith v Gartner UK Ltd, Ms Smith (the Claimant) was absent from work on the grounds of sickness and had been receiving payments under Gartner UK Ltd’s (the Respondent) Permanent Health Insurance (PHI) scheme during this time.  In line with the terms of the PHI policy that the Claimant had originally signed up to in 2003, these payments were stopped when the Claimant reached the age of 60.

Of further note is the fact that the Respondents had in fact introduced a new PHI scheme in 2007 which provided employees with cover until the age of 65.

In response to the cessation of her benefits, the Claimant brought a claim for direct age discrimination against the Respondents, arguing that by not continuing the payments beyond the age of 60 they had treated her less favourably as a result of her age and could not justify this decision.

Ms Smith’s claim was rejected by the Employment Tribunal and she subsequently appealed to the Employment Appeal Tribunal (EAT) who rejected her appeal on the basis that the reason her payments ceased at the age of 60 was purely because the terms of the policy she had signed up to dictated that this be the case.  This was therefore not a decision made by the Respondent and as such could not be deemed an act of discrimination.

The EAT further decided that the Respondent’s decision not to extend the benefits of the PHI policy introduced in 2007, could similarly not be deemed discriminatory.  As the Claimant was already receiving benefits under the old PHI policy and was not actively working, she did not satisfy the conditions of the new scheme.

In light of the above, Employers could be advised that they are not under an obligation to offer additional benefits in excess of PHI schemes simply to avoid discrimination claims and that cases such as these may very much depend upon the terms of the PHI policy in question.  It should also be noted that the Equality Act 2010 does allow Employers to cease offering PHI in addition to other insured benefits, at the age of 65 or the employee’s state pension age (whichever is the higher).

Beware however that this area of the law may well be subject to change in the future given the very different decision reached by the Employment Tribunal in 2013 in the case of Witham v Capita Insurance Services Ltd.

establishing the trigger point for employers’ liability insurance

The decision of the Supreme Court in BAI (Run Off) Ltd v Durham & Ors is the most recent chapter in long running litigation on the liability of insurers under policies taken out by employers to cover them for industrial diseases contracted by employees. The litigation arose over the liability of insurers for mesothelioma, an incurable form of cancer caused by exposure to asbestos, which can take up to 40 years to develop after a single exposure. Because of the long time lag, by the time employees become aware that they have suffered the injury, their employer may have been defunct for many years, so they are entirely reliant on insurance cover in any compensation claim. A group of mesothelioma sufferers, and their families, brought proceedings to recover compensation, and the employers’ insurers denied liability.