Employer not liable for Managing Director’s assault on employee following Christmas party
In Bellman v Northampton Recruitment Ltd, the High Court has held that a company was not vicariously liable for the assault by its Managing Director on an employee, following the company’s Christmas party.
M was the Managing Director of Northampton Recruitment Ltd (NR Ltd). In 2010 he recruited his friend, B. In 2011 the company Christmas party took place at a golf club. After the party, half of the guests, including M and B, went on to a hotel where some employees were staying. The majority of them carried on drinking. At around 2am the conversation turned to work-related matters. M began lecturing the employees about how he owned the company and made the decisions. When B challenged M in a non-aggressive manner, M swore at him and punched him twice. The second blow knocked B out, causing him to fall and sustain brain damage. B brought claims against NR Ltd on the basis that it was vicariously liable for M’s conduct.
The High Court rejected the claim. The assault was committed after a work social event and a line could be drawn between the party at the golf club and the impromptu drinks at the hotel. What happened after the party was in the context of entirely voluntary and personal choices by those present to engage in a heavy drinking session.
The Court seemed to view the nature of the interaction between the individuals, which was work-related, as being less important that the time and place of the incident, which was not work-related because it was unplanned drinks after the party. This sad case was very finely balanced and could have gone either way. Employers should exercise caution around social interactions outside work, particularly where large amounts of alcohol consumption is involved, as each case will turn on its facts.
Employer’s knowledge of effects of disability not required for disability discrimination
Under section 15 of the Equality Act 2010, an employer will discriminate against an employee if the employer:
- treats the employee unfavourably because of something arising in consequence of the employee’s disability; and
- cannot show that the treatment was ‘a proportionate means of achieving a legitimate aim’.
In City of York Council v Grosset, the Employment Appeal Tribunal considered whether an employer who knew about a disabled employee’s disability, but did not know how it affected him, discriminated when it dismissed him on the grounds of misconduct. Mr Grosset was a teacher at a school operated by the City of York Council. Mr Grosset suffers from cystic fibrosis, which the Council was aware of. His workload increased and he struggled to cope with the additional demands which were placed upon him. He began to suffer from stress, which exacerbated his cystic fibrosis.
During this period, Mr Grosset took two lessons of 15 and 16 years olds, during which he showed them the 18-rated film “Halloween”. When the head teacher found out, he was dismissed for gross misconduct. The panel who determined the outcome of the disciplinary hearing did not accept that Mr Grosset’s decision to show the film was a momentary lapse of judgment and noted that Mr Grosset did not appear to show any remorse. Although the medical evidence which was available at the disciplinary hearing did not suggest a link between the misconduct and the disability, the evidence which was available at the Tribunal Hearing suggested that there was a link. Mr Grosset brought claims of unfair dismissal and disability discrimination.
The Tribunal dismissed the unfair dismissal complaint, as the evidence at the disciplinary hearing did not suggest any link between the misconduct and the disability. However, it upheld the disability discrimination claim, taking into account the later medical evidence. The Council appealed to the EAT, on the basis that the Council did not know there was any link between Mr Grosset’s misconduct and the disability at the time of his dismissal.
The EAT upheld the Tribunal’s finding of disability discrimination. The Council did not have to know that there was a link between the misconduct and Mr Grosset’s disability. The only knowledge that was required in order for the employer to be liable for disability discrimination, was knowledge that the employee was disabled and the Tribunal had been permitted to conclude that the decision to dismiss was not proportionate.
This case shows that an employer can inadvertently discriminate against a disabled employee, if it reasonably concludes that the reason for the employee’s dismissal (or other unfavourable treatment) is not related to his disability, if it later transpires that it was a link.
When will work-related stress be a disability?
In Herry v Dudley Metropolitan Council, the EAT gave guidance on when stress caused by difficulties at work may amount to a disability. In order to be protected by the disability discrimination provisions of the Equality Act 2010, an employee must have a physical or mental impairment which has a substantial, long-term, adverse effect on the employee’s ability to carry out normal day-to-day activities.
Mr Herry was a design and technology teacher and part-time youth worker. In 2012 he lodged a range of Employment Tribunal claims against Dudley Metropolitan Council and Hillcrest School. The proceedings covered 90 allegations and the Hearing lasted for 39 days. All the claims were dismissed. From May 2010 onwards, Mr Herry was off sick many times and was on continuous sick leave from June 2011 onwards. From October 2013 onwards, all his sick notes referred to “stress”. In 2014 he brought disability and race discrimination claims against the Council. He claimed that his disabilities were dyslexia and depression.
The Tribunal held that Mr Herry was not a disabled person at the material time. He had not shown that his dyslexia had a substantial adverse effect on his ability to carry out day-to-day activities and he provided little or no evidence that his stress had any effect on his ability to carry out normal activities.
The EAT made the following observations:
- There is a class of case where the individual will not give way over an issue at work, and refuses to return to work, yet in other respects suffers little adverse effect on their day-to-day activities;
- A doctor may be more likely to refer to the presentation of an entrenched position as “stress” than as anxiety and depression;
- A Tribunal is not bound to find that there is a mental impairment for the purposes of disability discrimination in such a case. Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise, are not of themselves mental impairments; they may simply reflect a person’s character or personality;
- Any medical evidence put before the Tribunal that supports a diagnosis of a mental impairment must be considered with great care, as must any evidence of adverse effect over and above an unwillingness to return to work until an issue is resolved to the employee’s satisfaction.
This case provides useful guidance on disability discrimination claims which relate to stress employees claim to have suffered due to difficulties at work. The focus in such a case will be on whether the employee’s condition has had a substantial long-term effect on their ability to carry out day-to-day activities. The onus will be on the employee to provide evidence of this.