Bellman v Northampton Recruitment Ltd

Vicarious liability is not confined to conduct at the workplace or during office hours. The court must identify, broadly and objectively, the employee’s field of activities by asking what the nature of the job was and what position the employer entrusted to the employee. It must then decide whether the employee used or misused that position in a way sufficiently connected with the wrongful act to make liability just. Time, place, voluntary attendance, alcohol and the absence of express authority are relevant but not decisive. A senior manager may misuse managerial authority outside working hours. Liability does not arise merely because colleagues argue about work and one assaults another; the necessary connection must arise from the employee’s entrusted role.

Mr Bellman, a sales manager, was assaulted by NR’s managing director, Mr Major, during late-night drinks following the company Christmas party. The drinks took place at a hotel after the organised event had ended. The High Court dismissed the claim, holding that the connection between Mr Major’s employment and the assault was insufficient: [2016] EWHC 3104 (QB). Mr Bellman appealed, arguing that the court had failed to give sufficient weight to Mr Major’s wide managerial remit, his authority over subordinate employees, the work-related trigger for the assault, and the surrounding circumstances. The central issue was whether the assault was sufficiently connected with Mr Major’s entrusted position to make NR vicariously liable.

Appeal allowed. Asplin LJ gave the lead judgment. Moylan LJ agreed with both judgments, and Irwin LJ agreed in the result. The High Court’s dismissal of the claim was reversed.

1. The question whether there is sufficient connection between the position in which the wrongdoer was employed and the wrongful conduct is an evaluative judgment and a question of law based on the primary facts found.
2. The governing approach in Mohamud v W M Morrison Supermarkets PLC [2016] AC 677 requires two linked inquiries. First, the court identifies the employee’s functions or field of activities by asking broadly what the nature of the job was. Secondly, it asks whether the employee used or misused the position entrusted to him in a way sufficiently connected with the wrongdoing to make it just to impose liability.
3. The field of activities must be assessed objectively and broadly. Actual authority is not the correct yardstick, and a rigid additional test based on ostensible authority would improperly restrict the inquiry. Time, place and context remain relevant, but none is necessarily conclusive.
4. Mr Major had a very wide managerial remit, authority over discipline and control of his own working arrangements. When his managerial decisions were challenged, he re-engaged that role by summoning employees and asserting his authority. The assault therefore arose from a misuse of the position entrusted to him, rather than from a merely personal altercation between hotel guests. The voluntary and separate nature of the hotel drinks, the late hour and the alcohol did not break the connection. The case was more closely analogous to Mohamud v W M Morrison Supermarkets PLC than to Warren v Henlys Ltd [1948] 2 All ER 935, where the employment relationship had ceased to govern the later encounter.
5. The examples in Bernard v Attorney General of Jamaica [2004] UKPC 47 and Ministry of Defence v Radclyffe [2009] EWCA Civ 635 illustrated that misuse of authority may occur out of hours. Irwin LJ emphasised that the facts were unusual and that liability does not arise merely because a work-related argument between colleagues leads to an assault. NR was nevertheless vicariously liable on these facts.

• Court of Appeal (Civil Division). Appeal allowed from the High Court decision: [2018] EWCA Civ 2214.
• High Court of Justice, Queen’s Bench Division. His Honour Judge Cotter QC dismissed the claim, holding that NR was not vicariously liable: [2016] EWHC 3104 (QB).