firm news

Jessica  Clough
Jessica Clough,
TRAINEE CHARTERED LEGAL EXECUTIVE
more
Does what happens at the Christmas party stay at the Christmas party?
18 December 2018

It’s Christmas party season, a time of joy and good cheer – but for HR it can mean dealing with the fall-out from drink-related bad behaviour.

While the majority of employees behave themselves at work events, there are those few who can’t resist having too many drinks and consequently misbehaving, perhaps thinking that what happens at the Christmas party stays at the Christmas party – but as we see in the case of Bellman v Northampton Recruitment Ltd [2018], this is far from the truth and their behaviour can have implications more far-reaching than just for themselves!

Mr Bellman was the Sales Manager at Northampton Recruitment. He was a childhood friend of the Managing Director, Mr Major.

The company Christmas party took place at a golf club, with many of those attending planning to stay overnight at a nearby hotel. After the party formally ended, most of the guests, including Mr Bellman and Mr Major, headed back to the hotel and continued drinking in the lobby on the basis that Mr Major or the Company was paying for the drinks. 

The drinking continued late into the night. During this “after-party”, the discussion turned to work and (now both drunk) Mr Bellman argued with Mr Major about the recent unpopular appointment of another employee.  Mr Major stormed off and at 3am summoned the remaining employees (about half of them) to lecture them “on how he owned the company, that he was in charge… and that he paid their wages”. Mr Bellman again brought up the recent appointment that he disapproved of. In response Mr Major swore and, despite others trying to hold him back, punched Mr Bellman twice. Unfortunately, Mr Bellman collapsed unconscious and fractured his skull, causing a bleed on the brain.  

Who was responsible?

Obviously Mr Major was primarily responsible for injuring Mr Bellman, but the question was whether Northampton Recruitment, the employer, was also vicariously liable for Mr Major’s actions.

Vicarious liability is a common law principle of strict liability for the wrongs committee by another person. As a result, an employer may be found liable for the actions of its employees, provided there is a sufficient connection between the employees’ actions and their employment with the employer such that it would be fair to hold the employer vicariously liable for the employees’ actions. It is a no-fault liability - this means it doesn’t matter that the employer itself did nothing wrong.

The High Court considered that Northampton Recruitment was a small company and Mr Major, as the Managing Director, was in effect its “directing mind and will”. However, it decided that the company was not liable for Mr Major’s actions as his behaviour took place after the company party had ended and that the drunken discussion at 3am in the lobby did not give rise to “sufficient connection” to his work to create vicarious liability against the company.

Mr Bellman appealed to the Court of Appeal.

The decision

The Court of Appeal found that Mr Major was the “directing mind” of the Company with wide authority and responsibility for all management decisions. It said that courts should look widely at the field of activities an employee was assigned to do, as well as their role, when deciding if there was “sufficient connection” between their behaviour and the employer.

In this case, the after-party drinking should be viewed against the background of the night’s events i.e. the Christmas party, and that Mr Major had worn his “metaphorical managing director’s hat” when gathering and lecturing the staff at 3 am. Mr Major was the most senior employee there and he had a supervisory role which he had asserted to the other employees. As a result, the Court of Appeal decided that the company was vicariously liable for Mr Major’s actions. 

Points to note

Employers should remember they may be found liable for their employees’ improper behaviour at work organised parties and other work events outside the office, especially where alcohol is paid for by the company.

The case above involved physical violence but could equally apply to other forms of misbehaviour, such as sexual harassment or verbal aggression.

However, the employer does have a defence to vicarious liability if it can show it took reasonable steps to prevent the wrongdoing from taking place. This can be done by:

  1. Circulating an office email before the event highlighting that this is a work-related function, even if it is out of hours and at another location, and attaching a clear Christmas party policy so that everyone is aware what will be considered inappropriate behaviour. The email should make it clear that the employer does not support any after-party that takes place, that any such event should be at a different location to the office party, and that it will not be making a financial contribution (such as paying for the alcohol). 
  2. Have clear policies in place on bullying and harassment, discrimination and alcohol & substance abuse. 
  3. Make sure employees are aware that any complaints they raise will be taken seriously and investigated properly.

While each case will be examined on its own facts, these recommendations should help minimise the risk of vicarious liability for the employer and the individual employees themselves.

If your company needs advice about the issues raised in this article or would like advice about reviewing and updating its policies, please contact the employment team at [email protected] or call us on 0118 952 7284.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

award winning law firm

Boyes Turner are proud to have received the following awards and recognition.

awards