In Bellman v Northampton Recruitment Limited a Director and Shareholder of an HGV driver recruitment business delivered two blows to one of his managers causing a permanent debilitating brain condition. The employer was found not to be liable to the manager because the assault occurred at an impromptu after-party, and not at the event organised by the company.
The work Christmas party usually splits opinion, as HHJ Cotter QC explains in his judgment, “the party was an ordinary or usual work Christmas party of the type no doubted dreaded by some and an annual highlight for others. Not surprisingly alcohol was consumed by many attending.” It is also a watch-time for employers and employees, and employment law is littered with cases involving behaviour under the influence of alcohol.
This behaviour can range from the mildly amusing to the deeply sad and this case, it must be said, falls safely within the latter. The Director, Mr John Major, was a life-long friend of the manager, Mr Bellman. After the conclusion of the arranged portion of the Christmas party at around 1 am, half the guests moved on in taxis to the bar of the local Hilton, at which a number of the guests were staying. The attendees continued to drink, a fair amount in the Judge’s view citing one attendee who drank, “four or five pints of Boddingtons and two Jack Daniels” at the Hilton alone. The party discussed “social and sport topics” until around 2 am when the conversation moved on to work. At around 2:45 am Mr Major responded to a comment about a newly appointed manager (who was believed to be on a higher salary than the others) by summoning all attending employees for a “rant” about how he was the boss of the company and that he alone made the decisions. When one employee made a comment, Mr Major reportedly exerted his authority by saying, “you will listen”. Mr Bellman then mentioned the new manager. Mr Major launched at him, knocking him to the marble floor with one punch. Mr Bellman rose with blood emitting from one ear and pleaded with Mr Major to desist. Mr Major broke free from people holding him back and floored Mr Bellman again. Mr Bellman suffered brain damage and brought this claim through a litigation friend due to lack of mental capacity.
The question for the High Court was whether Mr Major was acting “in the course of his employment” when assaulting Mr Bellman. This highly litigated area requires the court to identify whether there is sufficient connection between the conduct and the employment relationship. In concluding that there was not, HHJ Cotter QC found that the work Christmas party ended at 1 am and what remained was a spontaneous “frolic”. This created sufficient disconnection to break the link between the employee and the employer. While it was the case that Mr Major was an extremely controlling boss and involved in all aspects of this 24 hour business, it could not be the case that he was always on “on duty” according to the judge.
There is some sympathy for this; after all no one can be ‘on’ all the time. The issue here is Mr Major appears to have been exerting his managerial powers immediately before the assault. The theme of his rant suggested he was responding to work-related subordinate questioning of his control as director. He had the power (possibly unilaterally) to discipline employees, or at least command they remain to listen to his talk. The employees present may reasonably have concluded that had they simply walked off to avoid the rant they could receive sanction for failure to follow instructions. Mr Major was exerting his managerial function, albeit in a highly undesirable way.
When considering whether someone is acting in the course of their employment it is accepted that the time and location of an incident will be relevant, but by no means determinative. Consider the employee who is contacted while on leave to address an urgent work-related issue. No one is on call 24 hours a day, but they may be expected to switch on when work demands it. HHJ Cotter QC suggests that had the altercation occurred on the 13th hole of the golf course during a friendly game of golf, this could not be considered to be in the course of employment but, why not if the Director is appropriating a function of their employment role? To suggest a dictatorial Director is extricated from management responsibilities because the time and place were not strictly organised by the company risks placing form over substance. Keen observers may note that this argument is close to claiming primary liability on the basis that the Director was effectively a Managing Director and therefore the human embodiment of the corporate entity. The actions of the Managing Director could then be construed as actions of the company itself.
Clearly, this is an emotive case, and it is always tempting to skew the legal analysis to see ‘justice is done’. In this case, Mr Major’s lack of funds meant Mr Bellman was advised to pursue the company alone. Mr Bellman and his family therefore suffer the distress of his lack of capacity plus 10 years’ loss of his earnings and pension accrual, without the recourse to compensation he clearly deserves. So the emotive argument is strong. That said, the points raised above at least suggest that a finding in his favour may not have been wrong in law.