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Vicarious liability – where to draw the line between work and play

Under the Equality Act 2010, it is common practice for an employer to be held vicariously liable for discriminatory acts that their employees commit during ‘the course of employment’.

Imposing strict liability on employers encourages them to maintain standards of “good practice” by their employees.

This can include discriminatory acts (such as sexual or racial harassment) performed during events outside of the working day, such as after work drinks or parties, which are considered to be an extension of the work environment. This also applies regardless of whether the acts are done with the employer’s knowledge or consent. Employers can defend such claims if they can establish they have taken necessary steps to prevent such discrimination taking place.

In claims for personal injury, however, the test for Court is to determine whether an employee’s misdemeanours were ‘so closely connected with [the] employment that it would be fair and just to hold the employers vicariously liable’.

In the case of Bellman v Northampton Recruitment Ltd, the Court was required to establish whether a company was liable for their Managing Director’s violent attack on an employee, leading to a fractured skull and severe brain damage, following their Christmas party.

The High Court held that the company was not vicariously liable for the assault. The impromptu drinks were seen to be separate from the company’s Christmas party itself, in a different location and with other guests present as well as employees. It was decided that, though triggered by a work-related discussion, the incident itself had arisen in the context of ‘entirely voluntary and personal choices’ by those involved to engage in a heavy drinking session. Some commentators have questioned whether this decision was reasonable or in line with previously decided cases under the Equality Act.

With cases such as these regularly appearing before the Courts and Tribunals, we question where to draw the line between work and play.

Alan Lewis, Head of Employment at Linder Myers, advises “Cases like this highlight the importance of the correct training and policies being put in place by the employer. In particular, employers should ensure that they have Equal Opportunities and Harassment policies in place clarifying acceptable employee behaviour with regard to bullying, harassment, discrimination and misconduct.

To avoid being held vicariously liable for discriminatory out of hours conduct, in addition to having the correct policies in place, it is vitally important for employers to train their managers on equal opportunities in the workplace and advise all staff exactly when workplace behaviour rules will apply outside the usual workplace or working hours.”

If you would like further information regarding vicarious liability or dealing with misdemeanours in the workplace, require specialist in-house training or need an Equal Opportunities policy implementing, please do not hesitate to Call Us on 0800 042 0700, or email us on

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