Office Violence and Vicarious Liability

In a very interesting development in the field of employer’s liability (which has repercussions in both the Employment and Personal Injury field), the Court of Appeal has just published its judgment in the case of BELLMAN v NORTHAMPTON RECRUITMENT LIMITED ²⁰¹⁸ EWCA Civ 2214, overturning our own HHJ Cotter QC’s judgment.

The case concerned an assault by one John Major (no relation, apparently), Managing Director of the Respondent company, upon Mr. Bellman, a Sales Manager. The assault happened at a hotel, after a work’s Christmas party. An argument broke out and Mr Major got cross, summoning staff to give them a long lecture on his authority. When Mr Bellman questioned Mr Major’s decisions, Mr Major punched Mr Bellman, who knocked his head on the ground and – most unfortunately but perhaps all too predictably – suffered long term brain damage.

Judge Cotter had decided that there was both a temporal and a substantive difference between the drinks and the Christmas party: the drinks were not a seamless extension of the Christmas party and the drinks were attended by “hotel guests, some being employees of the Defendant and some not, having a very late drink with some visitors”. He said that there must be a limit to the effect of a discussion about work related issues and proper account must be taken of the time and place at which the discussion takes place. The extent to which the employment relationship put Mr Bellman at increased risk at the material time was a significant factor when considering the closeness between the relationship between Mr Major’s employment and the act in question. The consumption of alcohol at the party which the company had paid for passed without event but that what arose at the hotel was “in the context of entirely voluntary and personal choices”, and any increased risk of confrontation arising from the additional alcohol at the hotel could not properly support a finding of vicarious liability as the circumstances were so far removed from employment. He described the involvement of individuals in the early hours’ drinking session as “to use a hackneyed expression, akin to ‘a frolic’ of their own”.
Judge Cotter concluded that there was insufficient connection between the position in which Mr Major was employed and his wrongful conduct to render the company liable under the principle of social justice.

The Court Of Appeal, in ultimately reversing the decision, considered first the case of Mohamud v W M Morrison Supermarkets PLC ²⁰¹⁶ AC 677. In Mohamud, an employee – whose job it was to see that the petrol pumps and kiosk were kept in good running order and to serve customers – left the kiosk and assaulted a customer on the forecourt of the petrol station. Having analysed the existing case law on vicarious liability, Lord Toulson said as follows:

“44. In the simplest terms, the court has to consider two matters. The first question is what functions or “field of activities” have been entrusted by the employer to the employee, or, in everyday language, what was the nature of his job. As has been emphasised in several cases, this question must be addressed broadly; see in particular the passage in Diplock LJ’s judgment in Ilkiw v Samuels ¹⁹⁶³ 1 WLR 991, 1004….
45. Secondly, the court must decide whether 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…. To try to measure the closeness of connection, as it were, on a scale of 1 to 10, would be a forlorn exercise and, what is more, it would miss the point…
In the circumstances, it was held in that case that the conduct in question fell within the field of assigned activities and that there was sufficient connection between that field of activities and the wrongful act. Lord Toulson expressed his conclusion in the following way:

“47. In the present case it was Mr Khan’s job to attend to customers and to respond to their inquiries. His conduct in answering the claimant’s request in a foul-mouthed way and ordering him to leave was inexcusable but within the “field of activities” assigned to him. What happened thereafter was an unbroken sequence of events. It was argued by the respondent and accepted by the judge that there ceased to be any significant connection between Mr Khan’s employment and his behaviour towards the claimant when he came out from behind the counter and followed the claimant onto the forecourt. I disagree for two reasons. First, I do not consider that it is right to regard him as having metaphorically taken off his uniform the moment he stepped from behind the counter. He was following up on what he had said to the claimant. It was a seamless episode. Secondly, when Mr Khan followed the claimant back to his car and opened the front passenger door, he again told the claimant in threatening words that he was never to come back to the petrol station. This was not something personal between them; it was an order to keep away from his employer’s premises, which he reinforced by violence. In giving such an order he was purporting to act about his employer’s business. It was a gross abuse of his position, but it was in connection with the business in which he was employed to serve customers. His employers entrusted him with that position and it is just that as between them and the claimant, they should be held responsible for their employee’s abuse of it.

48. Mr Khan’s motive is irrelevant. It looks obvious that he was motivated by personal racism rather than a desire to benefit his employer’s business, but that is neither here nor there.”
Applying this reasoning to the Bellman case, Asplin L. J. concluded as follows:
“In the end, it seems to me that if one looks at the previous caselaw through the prism of Lord Toulson’s analysis in Mohamud, which is essential, the answer is clear. The question of whether there is a sufficient connection between the position in which the wrongdoer is employed and his wrongful conduct so as to make the employer liable under the principle of social justice requires the court to conduct an evaluative judgment. It is a question of law based upon the primary facts as found…”

Judge Cotter had found that Mr Major’s functions were widely drawn, he was the directing mind and will of the company, had a wide remit, was in overall charge of all aspects of the business, did not have set hours, and that for much of the week he was either directly working on company business or available for consultation or direction.
In allowing the appeal, the Court rejected the argument that Mr Major was a “mere reveller” (to use the terminology adopted in some of the older cases), and despite – or possibly because of – the emphasis placed upon context and the circumstances in which the act occurred by Lord Clyde in Lister & Ors v Hesley Hall Ltd ²⁰⁰² 1 AC 215.

Asplin L. J. agreed that “context and circumstances are important, and the mere opportunity of being present at a particular time or place does not mean that the act is within the relevant field of activities…. However, it seems to me that actual authority is not the right yardstick to apply. If it were, Lord Toulson would have expressed himself differently in Mohamud. He made it clear that the question of the field of activities entrusted to the employee must be addressed broadly. The question is “what is the nature of the job?” It is not a question of what the employee was expressly authorised to do. If one focusses upon actual authority one eschews a broad approach altogether. In fact, many of the cases before Mohamud would also have been decided differently if it were appropriate to look at the question through the lens of actual authority….”

As for the second matter to be considered, Asplin L. J. again referred back to Lord Toulson’s judgment when he stated that “….the cases in which there is sufficient connection between the position in which the person is employed and his wrongful act to make it right that his employer should be held liable under the principle of social justice, are ones in which the employee has ‘used or misused the position entrusted to him in a way which injured the third party’ …. Such a formulation is inconsistent with a limitation imposed by the employee’s actual authority. It is more consistent with the circumstances in which the employee would be held to have ostensible authority…. It is not clear to me that it is appropriate to rely rigidly upon such a concept in the post Mohamud world. The court is required to look at the question of the field of activities “broadly”. Adherence to an additional or secondary test necessarily limits the first.

In terms of whether the Judge was right to conclude that there was insufficient connection between Mr Major’s field of activities and the assault in a hotel at 3am, the Court decided in the negative. Despite the time and the place, Mr Major was purporting to act as the managing director; he was exercising the very wide remit which had been granted to him; his managerial decision making having been challenged, he took it upon himself to seek to exercise authority over his subordinate employees; the lecture itself was concerned with the nature and extent of his authority in relation to the business and the exercise of that authority over his fellow employees; he chose to wear his metaphorical managing director’s hat and to deliver a lecture to his subordinates; he was purporting to use his position and drove home his managerial authority, with which he had been entrusted, with the use of blows. “Looked at objectively, he was purporting to exercise his authority over his subordinates and was not merely one of a group of drunken revellers whose conversation had turned to work”.

The drinking session during which this assault took place had to be seen against the background or in the context of the evening’s events. As per Asplin L.J.: “Even if Mr Major had taken off his managerial hat when he first arrived at the hotel, it seems to me that he chose to don it once more and to re-engage his wide remit as managing director and to misuse his position when his managerial decisions were challenged. He purported to exercise control over his staff by “summon[ing]” them and expounding the extent and scope of his authority. In the light of the breadth of his field of activities, the round the clock business and Mr Major’s authority to do things “his way”, it seems to me that the employees who took part in the drinking session can have been in no doubt at that stage, that Mr Major was purporting to exercise managerial control over them. Given the context in which the drinks occurred, it seems to me that the nature of the interchange outside and inside the hotel lobby was naturally an assertion or a re-assertion of that managerial role. There is no suggestion in the judgment, nor were any submissions made to us to the effect that Mr Major’s behaviour arose as a result of something personal. He delivered a lecture about his managerial authority in relation to the company as a whole, as a result of a challenge to that authority.

Judge Cotter was also criticised for his analogies, Asplin L. J. finding that “The facts as found are a very long way from the example given by the Judge of a social round of golf between colleagues during which conversation turns to work…. The Judge’s example is based on a different premise. All participants are equal and attend as casual friends and golfers. One can readily see that in such circumstances, even if discussions turn to work and a golfer who happens to be a more senior employee assaults another golfer who is a junior colleague, looked at objectively, they have all attended qua social golfers. The participants in the drinking session on the other hand, had attended the Christmas party qua staff and managing director. As I have already mentioned, just because the drinking session was unscheduled and voluntary, I do not consider that their roles changed or if they did, that on the facts of this case, the role of managing director was not re-engaged.”

The Court of Appeal found that there was no decisive significance in the temporal gap between the Christmas party and the drinking session. This was merely a factor underpinning the change in the relationship between the parties.

Asplin L. J. went on to emphasise the whole context, including Mr Major’s dominant position and supervisory role, enabling him to assert his authority over the staff who were present and to re-assert that authority when he thought it necessary.

In a dissenting judgment (worth reading in itself), Irwin L. J. said that he agreed with the majority, with “some hesitation”. He emphasised how unusual the facts of this case were. He said that “what was crucial here was that the discussions about work became an exercise in laying down the law by Mr Major, indeed an explicit assertion of his authority, vehemently and crudely expressed by him, with the intention of quelling dissent”. He pointed out that “Liability will not arise merely because there is an argument about work matters between colleagues, which leads to an assault, even when one colleague is markedly more senior than another. This case is emphatically not authority for the proposition that employers became insurers for violent or other tortious acts by their employees.”

Nevertheless, this judgment provides a useful and timely reminder for employers of their responsibilities towards those under their care and influence.

Fergus Currie