In the festive season, whilst it's great to celebrate successes during the year and thank staff for their contributions, employers' thoughts should also turn to vicarious liability and what their legal responsibilites are relating to issues occurring at a work-related event, including those Christmas parties. In this article, we explore some situations that went badly wrong and we look at ...
...what actions should an employer be considering in relation to any work-related social event?
Employers need to exercise caution around any work-related social events, including Christmas parties, because there remains a legal duty to make sure employees are safe at such events, and on the employer for minimising potential risks and dangers.
Test cases have shown that the employer can usually be held *vicariously liable for the acts or behaviour of an employee done ‘in the course of employment’.
*Vicarious liability is the legal principle that an employer can be responsible for the action of its employees, even when the employee has committed an action that the employer would not approve of, and where the employer has not committed any wrong itself.
The first example shown here of this was an incident which occurred at a work-related event, in this case an impromptu ‘after-party’ following the firm’s actual Christmas party (Bellman v Northampton Recruitment Limited). This particular event led to a violent altercation in which a member of staff was seriously injured by the Managing Director, where the fight (and resulting injury) was considered by the Court of Appeal to be an assertion of the MD’s authority, and was therefore related to his employment. The Company was held vicariously liable.
In another case (Shelbourne v Cancer Research UK), an individual (who was a volunteer) attend a Christmas Party and had been drinking. He attempted to lift Mrs Shelbourne (an employee of Cancer Research), lost his balance and dropped her, causing Mrs Shelbourne to sustain a serious back injury. She brought a claim against her employer, saying that they should have considered that the presence of alcohol could lead to inappropriate behaviour, and should have taken appropriate steps to mitigate the risk. She did not win her case, but it nonetheless would have presented extensive legal costs for the organisation, and the question had been raised by the tribunal as to whether the event had been risk assessed (it had in part).
In a further case example, (Chief Constable of the Lincolnshire Constabulary v Stubbs and others) the tribunal considered two incidents of sexual harassment which occurred at social gatherings involving officers, either immediately after work or for an organised leaving party. The tribunal said that, given that work-related social functions may be interpreted as an extension of employment, the harassment took place in the course of the officers' employment, and therefore found the employer vicariously liable.
So, what actions should an employer be considering in relation to any work-related event?
Employers need to think seriously about their responsibilities and how they will handle any ‘mischief’ or misdemeanours at such events. As we’ve already seen, an official work Christmas Party or work-related social event is considered to be an extension to the workplace, and so the usual rules apply (even if it is held outside of working hours and away from the workplace). Therefore, it's important as a starting point to be pro-active and have the right policies and procedures in place, rather than waiting for the grievance claim or disciplinary investigation to land in the cold, harsh light of the morning after!
We are not saying you need to be a killjoy; after all, Christmas parties are there to thank employees for their work throughout the last year, hopefully improve team spirit and give everyone the opportunity to socialise in an informal environment. But employers should take reasonable steps to put a policy in place, risk assess planned events and communicate expectations to managers and colleagues.
Having a policy might not prevent an incident from occurring but, hopefully, it will serve as a reminder to employees about their expected conduct and as guidance for any managers in attendance as to what steps they should take, should the festivities get the better of someone. It will also be a control measure in any risk assessment.
If your company doesn’t have a robust ‘Code of Conduct’ or a ‘Work Related Social Events’ policy (helping you to steer clear of religious belief issues and ensure you have a policy robust enough to stand up to other work gatherings!), please do get in touch with me for assistance and to ensure your Christmas party is memorable for all the right reasons.
