Assault and harassment: When is an employer responsible for the acts of an employee?

Monday, 06 March 2017

In this update we review the recent English case of Bellman v Northampton Recruitment Limited [2016] EWHC 3104 (involving an alleged assault at a party after the Christmas party) and the recent Irish case of McCamley v Dublin Bus [2016] 27 ELR 81 (involving an allegation of harassment on social media).

The two cases neatly illustrate the differences between vicarious liability at common and what has been referred to by the Labour Court as “a form of constructive direct liability” under the Employment Equality Acts.

In Bellman v Northampton Recruitment Limited, the English High Court found that a company was not vicariously liable for an alleged assault committed against an employee by its director and fellow employee where the alleged assault occurred after a work Christmas party held at a golf club. After the work Christmas party, some of the guests decided to go on to a separate hotel for more drinks. At 3am at that hotel, an argument arose between the director and the employee, Mr Bellman. The director punched Mr Bellman, knocking him to the floor, where Mr Bellman hit his head and sustained a serious brain injury. 

The English rules on vicarious liability are similar to those in Ireland and the English High Court confirmed that an employer is vicariously liable for a tort committed by its employee if the employee who committed the act was “acting in the course or scope of his employment”. The Court considered a number of factors including the managerial authority of the director and the fact that the alleged assault occurred after the work Christmas party when the expectation or obligation to participate had ended. The Court found that there was insufficient connection between the alleged assault and the position in which the director was employed to render the company liable under the principle of social justice.

In McCamley v Dublin Bus, the complainant, Mr McCamley, was an employee of Dublin Bus and claimed that he had been harassed and victimised on the grounds of religion and race. The alleged harassment involved a series of communications via mobile phone, email and on Facebook from a number of individuals, including an employee of Dublin Bus. Section 14A(1) of the Irish Employment Equality Acts covers harassment against an employee at the place where the employee is employed or otherwise in the course of that employee’s employment. 

The Labour Court considered this concept in McCamley and determined that the test in harassment claims under the Employment Equality Acts is not akin to vicarious liability at common law:

“Unlike vicarious liability, in the case of harassment committed by an employee on another employee there is no requirement to show that the wrongdoer was acting in the course, or within the scope, of his or her employment. Hence, it matters not that the harasser was off duty or at home when he posted the offending material. It is, however, essential that the victim suffered the harassment in the course of his or her employment.”

The Court noted that the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 refers to non-workplace harassment as follows:

“The scope of the sexual harassment and harassment provisions extend beyond the workplace, for example to conferences and training that occur outside the workplace. It may also extend to work-related social events.”

The Court found that:

“There must, however, be some discernible connection between the harassment and the victim's employment in the sense that the victim suffered the harmful effects of the harassment while he or she was engaged in activity authorised by the employer.” 

The Court concluded that the purpose and effect of the offending comments was to disparage and ridicule Mr McCamley in the eyes of his work colleagues. The comments were directed at Mr McCamley, and intended to impact on him, in his capacity as a worker representative for employees of Dublin Bus, a role which he was authorised to perform in the course of his employment.

On this basis, the posting of the offending comments constituted harassment within the meaning of section 14A(1) of the Employment Equality Acts. However, Dublin Bus was able to rely of the defence provided by section 14A(2) of the Act, as the company had a policy against harassment at work and action was taken against the harasser under the disciplinary process.

The Bellman and McCamley decisions show that an employer can be liable for inappropriate conduct that occurs outside of the work place. This may result in litigation under common law principles of vicarious liability or under the Employment Equality Acts. Each case will need to be assessed on its own merits to determine whether liability arises and applying the established principles of the Courts in each area of law.

The McCamley decision is also particularly interesting as it shows how an employer can mitigate against the risks associated with an issue that is arises commonly in practice – potential harassment on social media - by ensuring that there is an appropriate dignity at work policy in place and taking action to deal with any complaints.

For further information on assault and harassment, or for general advice on any employment law issues, contact Emmet Whelan, Partner in the ByrneWallace Employment Law Team.