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). This was on the basis that, in the words of the Judge, “an employer is vicariously liable for a tort committed by its employee if that employee was acting in the course or scope of his employment. The underpinnings of vicarious liability relate to issues of policy and the decision of the court involves a value judgment”.
Having considered the relevant authorities including the recent decision of the Supreme Court in Mohamud v WM Morrison Supermarkets PLC  AC677 (assault at a petrol station), Judge Cotter identified the key questions to be considered:
a) Firstly looking at matters in the round or broadly, what were the functions or what was the field of activities entrusted by the employer to the relevant employee i.e. what was the nature of his job? This should not entail a dissection of the employment into its component activities, rather a holistic approach and answering the question as a jury would;
b) Secondly, was there was sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice? Again a broad approach should be taken and it is necessary to consider not only the purpose and nature the act but also the context and circumstances in which it occurred.
In this case Mr Major was the Company’s managing director in overall charge of the business and with a wide remit. He clearly saw part of his role as motivating staff, including rewards such as a Christmas party. His decisions included to pay for drinks at the party (subject to a financial limit behind the bar), to provide hotel accommodation and taxis to and from the venue. However this did not mean that he could always be considered to be on, or potentially on, duty just because he was in the company of other employees regardless of circumstances. It was particularly important that the assault happened after and not at the Christmas party. there was probably an expectation or obligation that employees would attend the party, but not to continue at the hotel afterwards. The spontaneous post event drinks at the hotel could not be seen as “a seamless extension of the Christmas party”.
Judge Cotter QC also addressed the question of the provision of alcohol to employees:
With excess alcohol can come a range of problems including aggression; as the streets of any major town or city late on a Saturday night will bear testimony. The Defendant had paid for alcohol at the Christmas party at the Golf Club and no doubt Mr Major had consumed, at the least, his fair share. However alcohol is customarily provided at virtually all Christmas parties of this nature and taken in relative moderation it can be safely enjoyed; and here the party itself passed without event. Any increased risk of confrontation at the Christmas party, which included two young children amongst the guests did not materialise.
What followed later arose in the context of entirely voluntary and personal choices by those present to engage in a heavy early hours drinking session. Given Mr Hancock’s evidence it is likely that a large amount of alcohol had been consumed over some hours at the hotel by those who remained discussing matters. Even assuming that the company paid or was expected to pay for some or most of the eventual bill, I cannot see any increased risk of confrontation arising from the additional alcohol at the hotel as properly adding support to a finding of vicarious liability, as it was so far removed from employment.
Standing back and considering matters broadly, what was taking place at 3.00 a.m. at the hotel was a drunken discussion that rose after a personal choice to have yet further alcohol long after a works event had ended. Given the time and place, when the conversation was, as it was for a significant time, on social or sporting topics, no objective observer would have seen any connection at all with the jobs of those employees of the Defendant present. That it then veered into a discussion about work cannot provide a sufficient connection to support a finding of vicarious liability against the company that employed them. It was, or without any doubt became, an entirely independent, voluntary, and discreet early hours drinking session of a very different nature to the Christmas party and unconnected with the Defendant’s business. To use a hackneyed expression akin to “a frolic” of their own.
And so it inevitably followed that Mr Bellman’s claim failed, leaving him with no apparent remedy in respect of his life-changing injuries. Judge Cotter QC recognised that Mr Bellman was entitled to feel greatly aggrieved. However, he could not foist on the insurer a liability which they should not have to meet.
However, a word of warning. This case is concerned with liability for personal injury and application of the principle of vicarious liability in the civil courts. There are many employment cases in which the extent of obligation of employers has been spread far more widely and, as the Judge acknowledged in this judgment, each case will ultimately turn on its own facts.