Determining the course of employment in vicarious liability
Are the courts any nearer to providing clarity on issues of vicarious liability, asks Chris Pawlowska
On 13 March 2018, the Court of Appeal in X v Kuoni Travel Ltd  EWCA Civ 938 concluded that there was no breach of EU law on the provision of package holidays, nor a contractual breach by Kuoni and a holiday-maker when an employee at one of their partner hotels in Sri Lanka, attacked and raped a holiday-maker staying at that hotel. Though it did not formally constitute part of the claimant's action, the first instance decision before McKenna J ( EWHC 3090 (QB)) and the judgments in the Court of Appeal both raise the possibility of vicarious liability on the part of the hotel for the conduct of its employee.
On 11 October 2018, the Court of Appeal in Bellman v Northampton Recruitment Ltd  EWCA Civ 2214 overturned the first instance decision of Cotter J by concluding that a violent attack on an employee, by a managing director, at an "after-party" following the firm's Christmas party, was in the course of employment.
The range of views expressed by the different judges on the course of employment show that, while the Supreme Court in Mohamud v Morrison Supermarkets plc  UKSC 11 sought to shed light in this area, this element of vicarious liability remains as opaque as ever.
The Lister test
The preferred approach is, of course, the test in Lister v Hesley Hall  UKHL 22 as expressed by Lord Steyn (at ), where his Lordship stated that the question was whether the torts were so closely connected with the employment that it would be fair and just to hold the employers vicariously liable. He did not envisage all acts committed during the hours of employment as generating such liability and distinguished (at [24-25]) between a tort closely connected to employment and "employment furnishing a mere opportunity" to attack someone. This position was echoed by Lord Millett (at ) who distinguished, in terms of an employer's liability for a warden in loco parentis, abusing boys in his care, as opposed to a porter or groundsman whose jobs had nothing to do with the care of boys.
The Kuoni case
In the Kuoni case, a hotel electrician offered to show a hotel resident a short-cut to the reception but led her to the engineering room where he attacked her. In McKenna J's view at :
"... there was no close connection between the employee's duties and the attack... That offer (of a short-cut) had no connection whatsoever with his duties."
In other words, this was an opportunistic act by the electrician which took it outside the range of vicarious liability. In the Court of Appeal, Sir Terence Etherton MR and Asplin LJ reflected on these comments and decided not to consider if the trial judge was correct in making them. With respect, having raised the point, their Lordships should have engaged with it, as McKenna J was probably wrong.
The earlier case law
Since Lister, we have seen a judicial tendency to take a more generous view of violence coming within the course of employment. Whether it is between co-workers, as in Wallbank v Wallbank Fox Designs  EWCA Civ 25 where there might be perceived provocation, foreseeable friction or workplace frustrations in a factory, or more recently, where there was no provocation, against members of the public in the context of retail employment in Mohamud, above.
This last case is especially apposite in relation to the facts of Kuoni. There was no hostility or provocation between the claimant and the employee here who attacked her. The employee was an electrician for the hotel. His work might, therefore, involve some degree of "back-room" activity but, as a member of the general staff of the hotel, he might and did come into regular contact with the public staying at the hotel. His engagement with the public is not identical to the kiosk worker in the Mohamudcase but must, at least, be analogous. In Mohamud, Lord Toulson stated (at ) that two issues needed consideration in determining the course of employment. The first was "the field of activities" entrusted by the employer to the employee which needed to "be addressed broadly" and the second, the issue of close connection.
The employee in Mohamud was a petrol kiosk attendant who, without provocation, verbally abused a potential customer, followed him out onto the forecourt and attacked him ferociously. Leading the Supreme Court, Lord Toulson found that, broadly speaking, the employee was engaged to attend to customers and deal with their enquiries. The verbal abuse was closely connected to these general duties and began the unbroken sequence of events that led to the attack on the forecourt.
Vicarious liability in Kuoni?
In Kuoni, if one regards the role of the employee broadly, the electrician could be seen as having a combined "field of activities". Part of his role might well have been beyond the sight of hotel residents. However, he would also have, in common with all staff of a hotel (including maintenance and laundry) a public-facing role to ensure that the hotel was well-represented in any social interactions which would be an inevitable part of working days. This electrician, clearly, did interact with the residents as he was given a drink, a cigarette and chatted with the claimant's husband shortly before the attack. Might this verbal interaction with hotel residents not then be seen as being within the field of activities for the electrician which began an unbroken sequence of events which led to the attack on the claimant, in line with Mohamud and for which the hotel might be vicariously liable? Longmore LJ, who was in the minority in Kuoni,thought so. He stated at :
"I would be far from certain that the hotel would not be vicariously liable as a matter of English law, for rape by an employee whom the hotel clothed in its uniform and represented to the world in general was a reliable employee."
At work / off-duty?
Apart from the notion of close connection within the "field of activities" that might form part of the working day, what is not considered with much consistency or clarity is the effect of an attack that takes place when an employee is not technically "at work". It was not entirely clear in the Kuonidecision, whether the employee was "at work" at the time of the attack or whether he was off-duty but remained on site after work, fraternising in the bar with the clients. As the employee was engaging in his working day from his kiosk, this was not an issue that arose in Mohamud.
It has arisen in other cases and the position of the courts has not always been very clear. Sometimes the courts have taken the view that this takes an attack outside the course of employment: see Pill LJ in Weddall v Barchester Healthcare  EWCA Civ 25 where an employer was not vicariously liable for an attack by a care worker on his line manager when he came off-duty. Sometimes the court treats an earlier moment at work as creating a seamless sequence of events to connect the attack after work with a point when an employee was still at work. In Mattis v Pollock  1 WLR 2158, the night club doorman's verbal exchange with visitors at the club while he was working, led to an attack in the early hours of the following morning when he was off-duty but returned with a knife. There are also times when the courts have suggested that with some types of employment, one might never really be off-duty: see, Neuberger LJ in Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church  EWCA Civ 256, in relation to priests.
The decision in Bellman develops this last approach suggesting that, where work is of a type where a manager has wide commitments and is potentially always available, a social situation outside work, with colleagues, could bring him back into his managerial role so that an attack by him could then be in the course of employment.
Vicarious liability in Bellman?
In Bellman, a Mr Major, the managing director of Northampton Recruitment Ltd (NR), organised a Christmas party for staff. NR was a small company providing a 24-hour service and Mr Major was fully engaged in its running and all aspects of staff control. The Christmas party was followed by drinks in a nearby hotel for those who wished to continue after the main function had finished. The conversation turned to work and Mr Major told his staff in an aggressive fashion that he could do what he liked. When Bellman questioned the pay and appointment of a new member of staff, Mr Major punched him twice, with such force, that he caused him brain damage. Was there a sufficiently close connection between the tort and Mr Major's job so that it would be fair to make NR vicariously liable? What was the significance of the attack occurring at such a social function? Could Mr Major be treated as being 'off-duty?'
The attack was clearly not at work premises or during the normal working day. One might argue that the actual Christmas party, where staff might feel obliged to attend, could be seen as a "seamless" extension of work if the attack had happened there. But the attack occurred at a later drinks party where staff were clearly free to attend or not. Asplin LJ took the view that "the unscheduled drinking session was not a seamless extension to the Christmas party" : at . However, the drinking occurred on the same day as a work event, was arranged by Mr Major. Taxis, hotel stays and further drinking was paid for by NR. When conversation turned to work, he was present not merely as a "fellow reveller" but as managing director, asserting his authority over staff and abusing that authority when challenged.
Once it is accepted that this put him back on duty, it is easy to establish the necessary close connection between his tort and what he was employed to do so as to find the employer vicariously liable. The broad field of his activities would allow him as manager, to assert authority over staff and this would be closely connected to him doing so in an abusive or violent way.
The big concern for Asplin and Irwin LJJ in Bellman was that employers should not automatically be seen as "insurers for the violent or other tortious acts" of their employees: at  and . With respect, this is an odd observation as employers began effectively insuring for their employees' intentional torts since the decision in Lister, nearly 20 years ago, and when Lord Toulson, in Mohamud in 2016, advocated his broad approach to the field of activities in assessing the course of employment, this sent out an even clearer message to employers that they would be exposed to liability where even a tenuous connection between work activities and violence might exist.
The challenge for the courts remains one of determining the outer parameters of activities which are in the course of employment. How significant an issue should it be to identify that an employee is off-duty when a tort occurs? How are we to define the so-called field of activities? The Mohamud decision indicates a widening of the Lister test, but the position remains fluid. Nearly two decades after Lister, we are really no clearer on how to distinguish between acts which are sufficiently closely-connected to one's work and those which are opportunistic and, therefore, outside the scope of vicarious liability.
Chris Pawlowska is a senior lecturer in law at the School of Law, University of Greenwich