UK: Troublesome Bouncers

"It’s not my fault". This seems to be a natural human reaction as soon as we acquire the power of speech. For employers, however, problems are increasingly their fault, whether they like it or not. In fact, employers seem increasingly to be held responsible for the acts of their staff even when the acts are (to the man in the street) clearly outside the ordinary course of employment.

This was not always the case: at one stage, it was fairly obvious whether an act was in the course of employment or not. For example, if a driver had an accident while making a delivery, then the employer was responsible for the driver’s negligence, if negligence there was. If, however, the driver had made a detour to visit a friend, then, in the rather quaint judicial language of the time, he was on a "frolic of his own" and the employer was not responsible.

It seems unlikely that the same result would be reached today, here is why.

The first in a series of recent cases actually involved an ex-member of staff of one of our predecessor firms (Crossman Block). Mr Fennelly failed to show his ticket at Bromley South Station, following which there was an argument and he was assaulted by the ticket inspector. Clearly the assault was outside the inspector’s duties as an employee but, nonetheless, the assault was so closely connected with the inspection of tickets, that it was held to be in the course of employment and so the employer, Connex, was responsible for the inspector’s acts.

Two subsequent cases both involved doormen. The first involved a doorman at Flamingos Night Club in Woolwich. The doorman was involved in a fight at the door and came off somewhat the worse. He went back to his flat, armed himself with a knife, and attacked a friend of the individual involved in the first altercation. Given that the doorman had left his post, gone home and collected the knife, one would think that his actions were clearly outside the scope of his employment. However, the Court held that because the employer encouraged an aggressive attitude on the part of the doorman, then it was responsible for his acts.

The most recent case was decided in January this year and, again, involved a doorman. The only difference was that he was supplied by a security agency. Again, a member of the public was injured by a doorman this time in a fight at the Chicago Rock Café in Southend. Even though the doorman was employed by an agency, it was decided that because he was under the control of the Club, it was responsible for the injuries he caused.

The conclusion has to be that if an employee causes an injury and one can say that "...but for the employment he or she would not have been in the position to cause that injury", then there is a good chance that the employer will be held liable for his or her acts.

Other than checking your employer’s public liability insurance policies, what can one do about this? Training is one answer. Training may reduce the chances of an incident as aggressive training in the Flamingos night club case may have tipped the balance against the employer. Written policies as to the behaviour of employees meeting the public would also increase the chances of an incident being outside the course of employment and so improve (but not necessarily eliminate) the chances of the employer avoiding responsibility.

© RadcliffesLeBrasseur

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