Posted on Dec 13, 2019 in Employment by Chris Phillips
The festive season is upon us and synonymous with this time of year is the staff Christmas party. Generally, the Christmas party is a place where employees are encouraged to let their hair down and celebrate, but will an employer be responsible for their employees’ actions when things don’t always go as planned and what steps should an employer take to mitigate the risks?
The limit of responsibility
Employers have a ‘duty of care’ towards their staff and this extends to organised social events taking place outside of work. Consequently, they might be held vicariously liable for the acts or omissions of employees - such as assault or sexual harassment. For the principle of vicarious liability to apply, the acts or omissions must take place in the course of the employees’ employment. The legal test is whether the acts were ‘so closely connected with the employment that it would be fair and just to hold the employers vicariously liable’.
In one notorious case from last year Bellman v Northampton Recruitment Ltd , an employer was found vicariously liable for assault committed by its managing director at an after-party.
The case involved an altercation between two employees. The Christmas party was held at a local Golf Club. All members of staff were invited, as were their partners. Alcohol was consumed and as the night progressed, more than half of the guests decided, on a spur-of-the-moment decision, to continue the party at a nearby hotel. During a heated exchange at the hotel, a director of the company assaulted an employee. The employee was punched twice and was knocked to the floor, causing him brain damage.
The High Court
The employee brought a claim against their employer, Northampton Recruitment Ltd, alleging that it was vicariously liable for the director’s actions. The High Court rejected the employee’s claim, rendering the director personally liable for any injuries suffered because there was a clear line to be drawn between the Christmas party at the golf club and the continuation of the party at the hotel. As several of the employees decided to head home after the event at the golf club, the party at the hotel was classed as an ‘impromptu drink’ rather than a work-related social event.
The employee appealed the High Court decision and the Court of Appeal upheld the appeal. Key to the Court of Appeal’s decision was the wide breadth of the director’s field of duty and the close link between their actions and the exercise of their managerial authority. Whilst the ‘impromptu drink’ at the hotel, where the assault took place, was not a continuous extension of the Company’s Christmas party, the director of the company had decided to wear their metaphorical ‘director’s hat’ during the impromptu drink by lecturing their subordinate employees on their rights as Managing Director. Had the assault taken place as a result of something other than the director’s assertion of their own authority, even in the context of work discussions, Northampton Recruitment Ltd may not have been held liable.
What employers need to do
This case serves as a prudent reminder to employers to take steps to mitigate any risks involved. The actions and consequences in the Bellman case were extreme and thankfully pretty unique. But what steps might an employer take in the run up to the Christmas party to at least minimise the risk of something untoward occurring?
Set clear standards
Always ensure policies, including those on Equality and diversity, Harassment and your Disciplinary Procedure are up to date and brought to the attention of employees. Where improper behaviour has occurred at an organised work-related event, make sure you are seen to enforce and uphold those standards by taking disciplinary action as appropriate. If a complaint is made, investigate as you would any other allegation of misconduct.
It’s all too easy for inhibitions to be lost and behaviour to become unruly if too much alcohol is consumed, so encouraging staff not to drink too much is recommended. Make sure you offer food and of course, drinks without alcohol for those that don’t drink or just want to pace themselves. Be mindful of those who for religious or health reasons must avoid alcohol or certain types of food. Ensure the venue is accessible to all and ask beforehand about any special dietary requirements so that these can be accommodated.
Usual sickness absence rules should apply if an employee is not in work on the day after the Christmas party and any sickness absence policy should be followed. It may be appropriate to start the disciplinary procedure for employees who are absent without authorisation or fail to follow the employer’s absence reporting procedure. One way to avoid sickness absence is ensuring the party is held over the weekend.
It is important that employees take care posting statuses and sharing photographs of the Christmas party, via Facebook, Instagram, Twitter and Snapchat, so as not to bring the company into disrepute or offend their work colleagues. Employers will be in a much stronger positon to deal with any issues if a clear Social Media Policy is publicised and implemented and employees are aware of the possible consequences of ignoring it.
But have fun too!
Despite the potential pitfalls, Christmas parties can be a great way to enhance morale and make staff feel valued. We hope, by sticking to some basic principles, your Christmas party is a great success.
Chris Phillips is a Partner and Alex Dawson is a Trainee in our specialist Employment Law team. If you have queries about employment law matters please contact Chris Phillips or any member of the Employment team.
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