The office Christmas party! To most, the Christmas party is an opportunity to celebrate a year of hard work and bond over a few drinks, if not, too many!
However, if you are an employer, the Christmas party can present numerous other problems, alcohol often being the common denominator! Employers can be largely unaware of their legal responsibilities to their staff after a work-related party as it is generally perceived that social work-events are separate from the usual working environment.
As some may know, the general rule is that employers are 'vicariously liable' for acts committed by their employees where the wrongdoing takes place in the scope of their employment. An extreme example of this liability was considered by the Supreme Court in the case of Mohamud -v- WM Morrisons Supermarkets plc. Morrisons was found to be vicariously liable for an attack carried out by Mr Mohamud an employee on a customer at one of its stores whilst on duty.
In the context of a common law vicarious liability claim in the case of Bellman v Northampton Recruitment Ltd. It was held the employer was not vicariously liable for a violent assault following a heated work-related discussion on an employee by the employer's managing director at a spontaneous party following the company's Christmas party.
WHAT IS MEANT BY VICARIOUS LIABILITY?
Vicarious liability in an employment relationship is the principle where an employer can be held liable for the actions of their employee. It is therefore a form of secondary liability. The main component for any successful claim for vicarious liability is that the act complained of must have occurred 'within the course of employment'. This is where complexities arise, as what the Employment Tribunal deems to be within the definition of the 'course of employment' will depend on the facts of each case.
HOW IS VICARIOUS LIABILTY ESTABLISHED?
A two-stage test must be satisfied;
- Where it is established that some relationships can give rise to vicarious liability, such as employment – it is possible to move to the second stage of the test.
- Second, is the connection between the relationship between the primary wrongdoer and the person alleged to be liable, and the wrongful/ default act of the primary wrongdoer, such as to make it just and reasonable to hold the person legally responsible to the claimant for the consequences of the wrongdoer's conduct.
DOES VICARIOUS LIABILITY ONLY ARISE DURING WORKING HOURS?>
In short, no. Vicarious liability in relation to incidents outside work has been addressed in a series of decisions in the context of statutory discrimination claims. The issue takes on greater prominence in that context because of the broader meaning of 'course of employment'. At common law, the focus is different, being on the closeness of the connection with the field of activities entrusted to the employee. Regardless, provided the differing tests are considered, elements of the reasoning in the context of considering statutory discrimination claims are to be of assistance in applying the common law close connection test.
For clarity, the courts tend to view work related functions as an extension of the employment relationship, specifically where the employer contributes to the costs of the event, such as supplying alcohol, food and venues. Meaning, the duties and obligations of the employer that ordinarily apply in the office will continue to be applicable to work related parties.
As a result of this, employers are deemed to be vicariously liable for the acts of their employees carried out 'in the course of employment'. Contrary to popular belief, events held out of office and out of normal working hours may still fall within the definition of course of employment.
HOW FAR DOES COURSE OF EMPLOYMENT EXTEND?
Whilst most employers will have issued warnings about acceptable behaviour and unwanted conduct, often provisions for how employees get home appear to be overlooked, as the employee is no longer within the premises of the party.
Despite this, an employer does not have a legal duty to ensure employees get home safely after a work party any more than it does for any other work event. The position is only different if the employer had an express or implied contractual duty to their employee within an employment contract as there are no employment law rules in statute or case law that governs this situation specifically.
Most case law relating to mishaps at office parties relate to discrimination or harassment claims but the courts will tend to apply the same principles to health and safety breaches. Therefore, an employer will be in breach of its general obligation to ensure health and safety as well as its common law duty of care to its employees in the work environment and may be liable if the employer allows an inebriated employee to drive home and subsequently be involved in an accident. Meaning, a duty of care approach is advisable and this extends to things such as Christmas parties.
WHAT EMPLOYERS CAN DO TO PROTECT THEMSELVES FOR NEW YEAR CLAIM
The implementation of PSD2 bans surcharges on the use of payment cards and users will only be liable for transaction charges where the amount is fully disclosed prior to the transaction. Users will also have the right to request monthly transaction statement, without charge.
This overarching ethical responsibility requires the logistics of how employees will get home to be considered in advance, to demonstrate risk minimisation measures. Provisions are advisable particularly if you are supplying alcohol. You may want to consider;
- Providing transport such as a coach;
- Circulating registered taxi company numbers in the days prior to the event;
- Consider proximity of venue to public transport / taking into account late night timetables;
- Encourage the use of public transport to any drinking staff;
- Offer a practical office party guide; and
- As good practice, in employment contracts have a policy in place on workplace social events to cover your duty of care for employees.
An employer can be deemed to have breached their duty of care by failing to take all reasonable and proportionate steps in the circumstances to keep the employee safe from harm.
If you would like more information on Vicarious Liability contact Richard Berry, Partner and Head of Employment and Immigration at firstname.lastname@example.org.
Disclaimer: this newsletter is provided for general information only and is not intended to be nor should it be relied upon as legal advice in relation to any particular matter.
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