Shelbourne v Cancer Research UK Ltd

Permission to appeal should be granted where proposed grounds raise an arguable case that an employer’s risk-assessment duty is preventative and proactive. A reasonable employer must identify foreseeable risks of harm and take reasonable steps to minimise them. The adequacy of an assessment depends on whether it addressed the realistic risk in question, rather than a narrower risk.

Whether an employer is vicariously liable depends on the evaluative judgment required by the connection between the employee’s position and the wrongful conduct. That is a question of law based on the primary facts. Providing the occasion and opportunity is insufficient by itself, but may be an important factor in a work-related social event.

Sandra Shelbourne sought renewed oral permission to appeal against a decision of Mr Recorder Catford at Southend County Court on 2 May 2018. The Recorder had found that Cancer Research UK Ltd was not liable for injuries sustained when another employee, Robert Bielik, picked her up without consent and dropped her at a Christmas works party.

The proposed appeal challenged findings concerning the employer’s direct duty in organising and supervising the party, including risk assessment and intervention in inappropriate behaviour, and its possible vicarious liability for Bielik’s conduct. The central question was whether those grounds were arguable with a realistic prospect of success.

1. Permission granted. The proposed grounds were sufficiently arguable to justify an appeal. The court did not indicate the likely outcome on the merits.
2. The claimant had an arguable case that the employer’s duty arising from risk assessment was preventative and proactive. It required foreseeable risks of potential harm to be recognised and reasonable measures taken to minimise them. The assessment addressed alcohol consumption only in relation to employees re-entering laboratories, whereas the more immediate risk of inappropriate behaviour at the party had arguably not been addressed. The alleged failure to respond to Bielik’s earlier inappropriate behaviour towards a supervisor provided an arguable basis for contending that reasonable supervision and intervention were lacking.
3. As explained in Bellman v Northampton Recruitment Ltd [2018] EWCA Civ 2214, whether there is a sufficient connection between the employee’s position and the wrongful conduct is a question of law based on the primary facts. It is therefore not merely a question of fact for the trial judge.
4. In assessing that connection, the employer’s provision of the occasion and opportunity for wrongful conduct is insufficient by itself, but may be an important starting point in the case of a work-related party. The location of the conduct is a further, non-governing factor. It was arguable that the employment relationship, the shared attendance at the work event, and the circumstances of the occasion could support a reasonable expectation of appropriate behaviour and employer responsibility.

1. High Court (Queen’s Bench Division): On 11 December 2018, renewed oral permission to appeal was granted against the decision of Mr Recorder Catford at Southend County Court on 2 May 2018.
2. Southend County Court: The defendant was found not liable for the claimant’s injuries.