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Employers can be vicariously liable for the violent conduct of their employees outside work

In Bellman v Northampton Recruitment Limited (NRL), the Court of Appeal decided that NRL was liable for its Managing Director drunkenly assaulting another employee at an “impromptu” drinks event after a work Christmas party. There was a sufficient connection between the Managing Director’s employment and the assault. This is an important case for employers to be aware of in the run-up to the Christmas party season.

Facts

Mr Bellman was a Sales Manager at NRL. After the NRL Christmas party, he and a number of colleagues went to a hotel bar for an “impromptu” drink. At the hotel, the employees discussed a work matter. The Managing Director lost his temper and told the employees that it was he who owned the company and made the decisions. Mr Bellman verbally challenged the Managing Director, who punched him twice. As a result of this, Mr Bellman suffered severe brain damage.

Mr Bellman sued NRL for damages, on the basis that NRL was vicariously liable for the assault.

Decision

The High Court dismissed Mr Bellman’s claim, holding that the Managing Director was not acting in the course of his employment when he assaulted Mr Bellman. The drinks were impromptu and each employee had a personal choice as to whether or not to attend. The fact that work topics were discussed at the drinks did not mean that there was a sufficient connection between the Managing Director’s employment and his wrongful conduct in assaulting Mr Bellman.

The Court of Appeal overruled the High Court’s decision, finding that there was a sufficient connection. The Court of Appeal noted that it was important to look at the level of authority of the Managing Director – in this case it was very wide, as he had no set working hours, he controlled the way he worked and he made all management decisions. In the Court of Appeal’s view, at the hotel he had exerted his authority over the employees when telling them that he made the decisions in relation to NRL.

Comment

The outcome of this case turned on its (very specific) facts. The “close connection” test for vicarious liability gives the courts a broad discretion and employers should be aware that they will not always be vicariously liable for the conduct of employees in arguments outside the workplace that relate to work matters. The key differentiating factor in this instance was that the Managing Director had a significant amount of management responsibility and authority which he exerted over the employees at the after party.

As we approach the Christmas party period, employers should remind their employees (and in particular, senior management) about behaving appropriately. This can include communicating with employees about what is expected of them at office parties as well as the policy for coming into work the following day. This will assist in reducing the potential risks that employers face in the festive season.

Employers can be vicariously liable for the violent conduct of their employees outside work

Government to propose mandatory ethnic pay gap reporting

As UK companies with more than 250 employees are now required to publish gender pay gap information, the government has turned its attention to the ethnicity pay gap.

On 11 October 2018, the government launched a consultation seeking views on ethnicity pay reporting by employers to inform future government policy. The consultation, which closes on 11 January 2019, asks what ethnicity pay information should be reported by employers to facilitate meaningful action, without unduly burdening businesses.

The consultation focuses on what ethnic pay reporting should look like and how it should be introduced. It outlines different approaches to reporting, ranging from the average hourly earnings of different ethnic groups to reporting ethnicity pay information by pay band or quartile. The government is also seeking views on whether any contextual factors, such as gender or age, should form part of the reported information.

Alongside its consultation, the government has also announced a new “Race at Work Charter”. Employers who adopt the charter (which is voluntary) will commit themselves to a set of principles that aim to improve recruitment and progression for employees from ethnic minority backgrounds.

Although ethnic pay gap reporting is currently not mandatory, employers who want to be seen as serious about diversity and equality may want to consider reporting. Hopefully many will have a positive tale to tell, helping them attract top talent from all ethnic backgrounds; those who find that they do have a material ethnic pay gap will be able to take action to tackle it and report their progress in doing so.

 

Government to propose mandatory ethnic pay gap reporting

Parental Bereavement (Leave and Pay) Act 2018 receives royal stamp of approval

The Parental Bereavement (Leave and Pay) Act 2018 was given royal assent on 13 September 2018, having started out in July 2017 as a Private Member’s Bill subsequently supported by the government.

The Act will offer, as a day one right, two weeks’ leave to any employed parents who lose a child under the age of 18 or who suffer a stillbirth after 24 weeks of pregnancy. Employees will also be eligible for statutory bereavement pay if they meet certain criteria, including that they have been employed for at least 26 weeks, ending in the week of the child’s death, and have given the correct notice.

Bereavement leave must be taken within 56 days of the child’s death and parents who have lost more than one child will be entitled to take leave in respect of each child.

The Act provides that regulations will be made in due course, setting out how parental bereavement leave and pay will be taken, and the eligibility criteria. This will include details of notice requirements, whether leave can be taken in separate blocks and whether employees who are not the biological parent of a child (but who have been significantly involved in caring for the child, such as step-parents) will also qualify for leave and pay.

The rights provided by the Act are expected to come into force in April 2020, but this will be confirmed by the regulations.

Under current legislation, employees have the right to take a reasonable amount of unpaid time off work to make arrangements following the death of a dependant. However, the cases on this limit the amount of time off to one or two days at most, save in exceptional circumstances. The change in law is therefore the first time in the UK that specific bereavement leave has been made both a legal right for up to two weeks and paid.

Employers may already have in place a policy on bereavement. Acas has published a  guide to managing bereavement in the workplace, which is available at http://www.acas.org.uk/index.aspx?articleid=4977

After the regulations have been published, employers should consider reviewing any existing policy or putting one in place, and should ensure that managers and HR are trained on the new rules.

Parental Bereavement (Leave and Pay) Act 2018 receives royal stamp of approval