Troublesome Bouncers?

Posted: Thu Jul 14, 2005 3:00 pm

A recent case involving a club doorman prompts discussion to think about the increasing liabilities placed on employers.

"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.

Article courtesy of Mondaq.

Posted: Thu Jul 14, 2005 9:02 pm

This is a typical example of "Vicarious liability".

The simplified definition:
An employer is vicariously liable for negligent acts or omissions by his employee in the course of employment whether or not such act or omission was specifically authorised by the employer.

What implications might this present?
There appears to be a current trend among the judiciary to pass the blame on to employers wherever possible. This seems to be based on the economic reality that employers are insured for such eventualities, whereas the actual employee who causes the harm probably isn't.

Under the doctrine of vicarious liability, employers are liable for acts of their employees done "in the course of their employment". The ambit of this phrase has been widening, so that even where employees are acting in breach of specific instructions from their employer or even against the principles of common sense, the employer may be liable. While the insurance position remains the way it is, the law on vicarious liability is unlikely to change. (David Bickford, head of employment law).

Another example a little more relevant to Door Staff and EMPLOYERS of Door Staff, including AGENCY Door Staff:

Hawley v Luminar Leisure Plc

Employers are normally only vicariously liable for the actions of their employees carried out in the course of their employment.

In this case, Mr Hawley was assaulted by a bouncer outside a nightclub. Although the bouncer was employed by a separate security company, the court held that, due to the fact that the nightclub exercised a high degree of control over how he carried out his duties, the bouncer should be deemed to be a temporary employee of the nightclub for the purposes of vicarious liability. The nightclub was therefore liable to compensate Mr Hawley for his injuries.

It is likely that the court's decision was largely motivated by a desire to ensure that Mr Hawley was able to recover compensation for his injuries. It is probably unlikely that the same conclusion would have been reached if the bouncer had been trying to argue that he should be regarded as an employee for the purposes of claiming employment protection rights. However, the case does highlight the possibility of an employer being found vicariously liable for the actions of individuals who would not normally be considered to be employees. Therefore, it would be sensible for employers to check whether their insurance policies would provide cover for this type of liability. (end)

Naturally, the legalities involved are best left to the experts.
However, it is good practice if nothing else, for all door staff to be aware of this legal aspect of their profession.

More importantly.........it is IMPERATIVE that employers of ANY staff, not just door staff, are fully aware of the implications of this law.

Clear?..........

As mud...........yes I know so don't say it :smt120

Be safe all,

Mike.