Employer not liable after company director punched salesman on Christmas night out

A High Court judge has ruled that there was “insufficient connection” between the director’s employment and the assault for the employer to be found liable.

The court heard that John Major, a director and shareholder of the defendant company Northampton Recruitment Limited, assaulted the claimant Clive Bellman by punching him twice and knocking him to the floor, in the course of which his head hit the marble floor.

As a result of the assault Mr Bellman, a sales manager with the company, suffered brain damage and brought a claim seeking damages on the basis that the defendant company was “vicariously liable” for the actions of Mr Major.

The court heard that the incident occurred in the early hours of 17 December 2011 after the company’s Christmas party at the Collingtree Golf Club in Northamptonshire.

Ten members of staff attended the party with their partners and Mr Major and his wife Beverley – also a director and shareholder – brought their two children and invited two other guests.

After the party at the golf club ended just over half of the guests went onto a Hilton Hotel in Collingtree, including Mr Major and Mr Bellman, who were due to stay there overnight.

They arrived at the Hilton Hotel between 12.30 and 1am and although it was not a pre-planned extension to the party, they continued drinking in the hotel bar until about 3am when the assault took place.

For about 45 minutes after arriving at the Hilton there was general chit chat between those present on a variety of topics when the conversation turned to work.

At about 2.45am a group including Mr Major and Mr Bellman went outside and discussed company business, during the course of which Mr Bellman brought up the subject of the appointment of a new colleague in the Northampton office, Steve Kelly, who Mr Bellman believed was being paid “significantly more money than anyone else in the firm”.

This proved to be a controversial topic and Mr Major became annoyed at being questioned about his appointment and “stormed off” and returned inside the lobby.

The court was told that once back in lobby Mr Major “summoned” the remaining employees and began to lecture them on how he owned the company, that he was in charge and that he would do what he wanted to do.

Further mention was made of Mr Kelly and Mr Bellman, in a “non-aggressive manner”, then stated that perhaps it would be better if he were based at Nuneaton, but Mr Major responded by saying, “I f*cking make the decisions in this company it’s my business. If I want him based in Northampton he will be f*cking based there”.

Mr Major then assaulted Mr Bellman – his “close friend for over 40 years” – in what the judge described as an “unprovoked attack”.

Mr Bellman, who was 55 at the time, fell to the ground after being punched but got back up and held his out his hands in a gesture of surrender and said, “John, what are you doing? Don’t do this”.

However, Mr Major “lost all control” and CCTV showed that despite others trying to hold him, he broke free, ran back over and hit Mr Bellman again with a “sickening blow” with his right fist, knocked him out such that he fell straight back.

Mr Bellman was rendered unconscious with blood coming from his ears and one employee even feared he was dead.

He was taken to A&E and scans revealed a skull fracture and brain haemorrhage, with a subsequent report concluding that he suffered a “very severe traumatic brain injury with subsequent cognitive, emotional and behavioural consequences”.

Mr Major was charged with assault and claimed he acted in self-defence – a claim supported by another employee present James Harman – but a decision was taken not to proceed after Mr Bellman gave a statement saying he could not see the point in prosecuting him as he “did not want to ruin his life”, although a deputy chief crown prosecutor later indicated that the decision to end the prosecution was “wrong”.

On behalf of the claimant it was submitted that the assault was “in the course of and closely connected to employment”, that the conversation had turned to work topics and that Mr Major was “trying to assert his authority”.

However, the judge ruled that the “spontaneous post event drink” at the hotel “cannot be seen as a seamless extension of the Christmas party”.

He noted that Mr Major has been “ranting about work” and a challenge to one of his managerial decisions that was the “trigger” for the assault, but what followed later arose in the context of “entirely voluntary and personal choices by those present to engage in a heavy early hours drinking session”.

In a written judgment, Judge Cotter QC said: “Standing back and considering matters broadly, what was taking place at 3.00 a.m. at the hotel was a drunken discussion that rose after a personal choice to have yet further alcohol long after a works event had ended. Given the time and place, when the conversation was, as it was for a significant time, on social or sporting topics, no objective observer would have seen any connection at all with the jobs of those employees of the defendant present.

“That it then veered into a discussion about work cannot provide a sufficient connection to support a finding of vicarious liability against the company that employed them. It was, or without any doubt became, an entirely independent, voluntary, and discreet early hours drinking session of a very different nature to the Christmas party and unconnected with the Defendant’s business. To use a hackneyed expression akin to ‘a frolic’ of their own.”

The judge said there was “insufficient connection between the position in which Mr Major was employed and the assault to make it right for the Defendant to be held liable under the principle of social justice”.

He added: “I fully recognize Mr Bellman is entitled to feel greatly aggrieved at the assault by Mr Major which has caused such serious injury. He is also entitled to feel aggrieved at the combined effect of Mr Major’s claim that he acted in self-defence and the statements made by Mr Harman leading to the mistake by the Crown Prosecution service. However sympathy with his position cannot impact upon the proper application of principle.”