Employers are liable for acts of discrimination and harassment committed by employees ‘in the course of employment’ under the Equality Act 2010 where there is a sufficiently close connection between the act and the individual’s employment.
After a company-organised Christmas party, the organisation’s Managing Director (MD) paid for taxis to take a number of attendees, including staff, to a local hotel. A group stayed in the hotel lobby drinking alcohol which was mainly paid for by the MD. The conversation turned to business plans for the following year around 2am. A sales manager, Mr Bellman, brought up the issue of a recent staff appointment which was proving controversial. The MD, who was now very intoxicated, became annoyed. The MD summoned the remaining company employees and began lecturing them on his authority to make monetary and recruitment decisions about staff because he owned the company and was in charge.
Bellman, in a non-aggressive manner, challenged his decision about the new recruit’s work location, and the MD assaulted Mr Bellman twice. As a result of the assault, Bellman suffered a severe traumatic brain injury with subsequent cognitive, emotional and behavioral consequences, with the result that he was unlikely to return to paid employment. He sought damages from the employer, on the basis that the firm was vicariously liable for its managing director’s actions.
The High Court determined that there was not a sufficient connection between the nature of the MD’s employment and the assault, therefore, judging that the employer was not vicariously liable. They also reasoned that even though there was a work-related conversation, this did not mean the incident occurred ‘in the course of employment’ or this would extend the remit of employers’ vicarious liability to all work-related conversations.
The High Court’s decision was appealed on the basis that there was a sufficient connection between the position of the MD and his wrongful act, especially due to the nature of the MD role and the context of the circumstances leading to the assault.
The Court of Appeal (CA) allowed the appeal. In order to determine whether there was a sufficient connection, the CA highlighted that the first question to ask is what was the nature of the individual’s job and, secondly, was this connected to the incident.
When deciding what the nature of an individual’s job is, the CA reiterated that this is a broad consideration which is not limited to the express activities which are assigned by an employer. For example, in this case, the MD’s job was to be in overall charge of every aspect of the organisation’s business, with no set hours, with authority to control his own methods of work and having responsibility for all management decisions. He also had authority to manage junior employees and would have seen the maintenance of managerial authority as an important part of his role.
Taking this nature of the MD’s activities, the CA found there was sufficient connection between his field of activities and the assault. Regardless of the timing and location of the assault, the assault took place when the individual was exercising his managerial authority over junior employees, including giving members of staff a lecture regarding his authority.
As a result, even though the follow-on drinking session was not scheduled and was voluntary, this occurred on the same evening as a work event which had been organised predominantly by the MD. In light of the MD exercising his managerial authority, and the context in which the drinking occurred, the CA concluded that there was sufficient connection and the organisation was vicariously liable for the assault.
Although, in this case, the Court of Appeal found that the employer was vicariously liable for the acts that occurred at a separate non-work organised event, the Court did express that this was based on the unusual facts of this case. They gave the example that a social round of golf between junior and managerial colleagues, where work is spoken about, will not lead to vicarious liability where all participants are voluntary and attending as equals. Alternatively, if one manager engaged their managerial role and expressed their authority, then this would engage their workplace activities.
Employers who arrange social events, or are aware that staff arrange these themselves, can communicate a reminder to staff that their attendance at these events is voluntary; participants will be treated, and choose to attend, on an equal basis; and that discussions regarding work, or activities related to work activities, are strongly discouraged. Any current social events policies or workplace behaviour policies can also be reviewed to ensure this is included within them. This will help prevent circumstances arising where members of staff engage their workplace roles and activities during social events.