The Christmas break is now a distant memory for most of us but spare a thought for the employee who went for ‘impromptu’ drinks following the work Christmas party which ended in him being subjected to a violent assault by his Managing Director – Bellman v Northampton Recruitment Limited (2016).
Employers can be liable for the acts of their employees by a concept known as “vicarious liability” if the acts are carried out “in the course of employment” as long as the acts are “so closely connected with the employment that it would be fair and just to hold the employers vicariously liable”. This allows an employee to sue the company for the wrongdoing as opposed to the individual, which is usually a more profitable route.
However, acts which are committed outside of working hours are notoriously difficult to categorise as to acts committed “in the course of employment”. Each case will turn on its own facts.
In this case the Court looked at a number of factors which indicated that the MD was not acting in the course of his employment:
- The drinks where the incident took place were separate from the work Christmas party itself and held in a separate location
- Other guests such as the employees’ partners were present
- The conversations were generally not about work related issues
However, the attack was triggered by a belief by the MD that his authority was being challenged which does suggest that there may have been a work related element to the conversation.
Although the company was found not to be liable for the MD’s acts in this instance, the case serves as reminder for employers to ensure that the right policies and procedures are in place. Policies such as Equal Opportunities and Anti Bullying and Harassment should clearly set out the type of behaviour it expects from its employees and the possibility of disciplinary action should the employees not adhere to the required standards. This is especially important in terms of discrimination as the awards for discrimination are uncapped in the tribunals.
It is a defence for employers faced with a discrimination claim to show that it took all reasonable steps to prevent the perpetrator from doing the act. If the employer is to succeed in this argument it needs to demonstrate that it has properly communicated to its employees and other workers what is (and is not acceptable). A good starting point is to ensure that the policies and procedures in place. However, this may not always be enough as Tribunals look at how this message has been delivered to employees. Employers should be encouraged to deliver training around these issues so that there is no doubt as to the standards required and the potential outcomes.
If you need any assistance in drafting your policies, or providing training courses to your employees and workers, please get in touch with our Employment Team.