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Workplace injury: vicarious liability & the work Christmas party

Workplace injury lawyer Ross Whalley discusses the law relating to violent incidents at the office party

Office Christmas party
Ross is a solicitor specialising in personal injury and has worked exclusively in the field of workplace injury claims since 2003. You can follow Ross @ross_whalley
 
The Crime Survey for England and Wales 2016/17 revealed that there were 642,000 incidents of violence in the workplace. An estimated 1.3% of working adults were the victims of one or more violent incidents at work. 
 
Whilst assault and battery are obviously subject to criminal punishment, they also can attract financial awards at civil law. This is known as the tort of “trespass to the person”. Victims of violence in a workplace context can seek financial redress via an action against the offender’s employer.
 
The term “vicarious liability” refers to a situation where someone is held responsible for the actions or omissions of another person. In a workplace context, an employer can be liable for the acts or omissions of its employees, including bullying, harassment, discriminatory acts and violence provided it can be shown that they took place in the course of their employment.
 
The law in this area is dynamic and not straightforward. Whilst there are no defences of provocation or contributory negligence, an employer may still be able to defend a case if it can be shown that a violent act was not connected to the assailant’s employment or that the assailant was on a “frolic” of their own. 
 
The key question is whether the employee was acting in a personal capacity, or in the course of their employment. This can often be difficult to determine. The current two-fold test was set out in the case of Mohamud v Morrisons Supermarkets Plc [2016] UKSC11; 
 
  1. Whether there was a relationship between an employer and wrongdoer;
  2. Whether there was a sufficiently close connection between that relationship and the wrongdoer's actions to make it just that an employer be responsible for harm suffered by a claimant as a result of those actions for reasons of social justice 

In keeping with the festive time of year, the complexity of this test is well demonstrated by a recent case involving an incident at a work Christmas party; Clive Bellman v Northampton Recruitment Limited [2018] EWCA Civ 2214.
 
Following a Christmas work party at a golf club, some employees travelled to a nearby hotel for drinks.  They travelled in taxis organised and paid for by the employer.  At the hotel, a conversation regarding work duties resulted in the employer’s Managing Director preaching to employees about duties at work. A subsequent argument led to him assaulting an employee, Mr Bellman, who suffered a traumatic brain injury.

Mr Bellman claimed against the employer, alleging it was vicariously liable for the actions of its Managing Director. At first instance in the High Court, it was held that, as the official Christmas party had concluded, the argument was not deemed to be within the course of employment. The case failed. 
 
Mr Bellman appealed the decision and succeeded at the Court of Appeal where it was found that there was a sufficiently close connection between the actions of the Managing Director and the employer’s business. Whilst the location and time at which the assault happened were unusual, the Managing Director was seeking to assert his authority at the time, and there was no personal background to his assault. Accordingly, the Court of Appeal disagreed with the High Court's overall conclusions on the context and circumstances of the assault and concluded that it was effectively a work-related incident.. 

It is therefore now insufficient as a defence for employers to simply state that an incident occurred outside of the assailant’s traditional place of work or outside their working hours. So actions at a Christmas party, and even at the Christmas “after party” can be found to be in a workplace context for which employers can be held vicariously liable. 

The boundaries of vicarious liability have been extended considerably over recent years. It is also now possible to take action against an employer for the behaviour of non-employees, subcontractors, or third parties such as clients and customers, provided these parties are deemed to be under the control of the employer. 
 
Case law will need to develop to keep pace with new and novel situations of violence at work. The Courts will need to adapt case law to the significant increase in variation to traditional work arrangements. The “gig economy” has seen large numbers of workers often not directly employed by those for whom they work e.g. Uber, Deliveroo etc. It will be interesting to see how the test is applied to those not deemed employees but who are alternatively defined as “workers”. 
 
I am currently working on several cases of workplace violence on behalf of  gig economy workers as well as more traditional employees. Whilst case law remains fluid, the context of the violent act remains critical to establishing vicarious liability against an employer.  

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