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Vicarious liability is the principle of law which allows an employer to be held liable for the actions of its employees, even where there is no wrongdoing on the part of the employer itself. Generally speaking, employers have a degree of control over the actions of their employees, so it is thought to be justified that employers should be liable in such situations, provided there is a sufficiently close connection between the act of wrongdoing and the act(s) the employer actually instructed the employee to do.

Over the past couple of years, a number of cases have suggested a trend towards holding employers vicariously liable. In Mohamud v WM Morrisons Supermarkets plc, a petrol station attendant assaulted a customer and Morrisons was held to be vicariously liable for his actions, because the employee’s actions were in response to the customer asking for assistance, which was within the realms of his duties. Similarly, in Bellman v Northampton Recruitment Ltd, the employer was held liable for the actions of its managing director, who seriously assaulted another employee after an argument about work that occurred after the end of the company’s Christmas party. It may seem somewhat unjust that an employer can be held liable for wrongful actions of employees even where they have expressly instructed the employee to stop the action (as in Mohamud, where the employee’s supervisor actively attempted to stop the assault) or where the act occurred outwith working hours (as in Bellman). However, these cases have established that the key test is:

(1) What the “field of activities” entrusted to the individual by the employer was; and
(2) Whether there was a “sufficient connection” between the position for which the employee was employed and his wrongful conduct to make it right that the employer should be liable.

Given the recent trend identified towards holding employers liable, the appeal case of Shelbourne v Cancer Research UK decided earlier this month by the High Court will be of interest to employers, as it adopted a common sense approach to the above test.

Mr Beilik, who was employed by Cambridge University, had been visiting the Cambridge Research Institute of Cancer Research UK to collaborate on work and had been invited to its Christmas party, at which he consumed a considerable amount of alcohol and then proceeded to lift a number of women in the air, one of whom he dropped in the process, resulting in a serious back injury. It was decided at first instance that Mr Beilik was sufficiently integral to the business of Cancer Research UK that it could be liable for his actions, even though he was not their direct employee, and this finding was not challenged on appeal. The appeal instead focussed on whether there was sufficient connection between the field of activities Mr Beilik was instructed to carry out on behalf of Cancer Research UK and his actions at the Christmas party to hold them liable for the injuries suffered by the employee he dropped.

The representative for the Claimant argued that the “field of activities” Mr Beilik was instructed to do included interacting with other attendees at a party where alcohol was consumed, and where employees were encouraged to “greater intimacy” than in the normal work setting, resulting in increased risk for injury. It was argued that the party was condoned by Cancer Research UK and that they “stood to gain from the enhancement of its employees’ morale”. The Claimant’s position was that if Cancer Research UK were to allow alcohol to be consumed at the party, it should have asked attendees to sign a written declaration not to behave inappropriately, carry out a risk assessment which took into account eventualities which might occur due to inappropriate behaviour, provide trained staff to monitor the event, and provide special training for the carrying out of risk assessments that encompass the risk of inappropriate behaviour.

Cancer Research UK argued that this was unreasonable. The risk assessment carried out prior to the party had in fact taken into account that alcohol would be consumed and two members of security staff had been engaged to prevent the scientists from returning to the laboratories after they had consumed alcohol. The individual completing the risk assessment took into account that no incidents of inappropriate behaviour had occurred at previous parties involving alcohol.

The High Court agreed with Cancer Research UK. It stated that “the archetypal reasonable person of the 21st Century would not regard [the Claimant’s measures] as a socially appropriate set of requirements to impose upon the organisers of any Christmas party or other similar social gathering”. It was clear that the employer had applied its mind to the risks of alcohol consumption. The event was not open to the public and the employer was entitled to take past experiences into account. It distinguished the case from Bellman, where the injury directly resulted from an argument about work matters. In contrast, Mr Beilik’s duties of carrying out research work had nothing to do with his actions of lifting women up at the Christmas party. His presence at the party was not a requirement and did not form part of his duties. The High Court stated that Cancer Research UK “did nothing more than provide an opportunity for this unfortunate accident”. On that basis it was concluded that Cancer Research UK was not vicariously liable for the serious injury suffered as a result of Mr Beilik’s conduct.

Comments
While the decision in this case clearly demonstrates a common sense approach to vicariously liability, it is interesting to note that it can be small distinctions which make the difference between circumstances when an employer is liable for the actions of its employees (and those closely associated with them) and when it is not. The deciding factors in the Bellman case were that the employees was very senior, and that the discussion revolved around work. However, the conduct causing injury still happened after working hours, and in fact after the end of the official Christmas party. Most people would likely agree that signing a “code of behaviour” before a Christmas party is likely to be excessive, and it is encouraging that the High Court in this case took a reasonable view. However, employers still need to be aware that there can be liability for actions that occur outside of normal working hours, or that are carried out by individuals that they do not directly employ.

If you have any queries about vicarious liability, please do not hesitate to contact a member of please contact a member of our Employment Team.

Annika Neukirch, Solicitor

Chambers Leading Firm 2019

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