While most work Christmas parties pass without a hitch, there are a few each year which create an HR hangover.
As the alcohol starts flowing, some employees’ behaviour may change, leading to possible misbehaviour and potential liability for the employer on its employee’s behalf.
Last Christmas, we reported on the case of Bellman v Northampton Recruitment, in which Northampton Recruitment was found vicariously liable for the drunken actions of its Managing Director to a subordinate at the Christmas after-party. Even though the incident took place later in the evening and at a different location to the work Christmas party, Northampton Recruitment was still found liable on the basis that it was a small company and the Managing Director was in effect its “directing mind and will”, so that his actions gave “sufficient connection” to the company for it to be liable.
However, the facts of Bellman were very specific and, as we reported in the more recent decision of Shelbourne v Cancer Research UK, employers are not always held to be responsible for their employees’ actions.
In Shelbourne the Christmas party was organised and run by a number of employees (rather than by CRUK), although the party took place on CRUK premises. Unlike in Bellman, the behaviour complained of was between two colleagues and CRUK had carried out a substantial risk assessment for the venue (one of its labs), including the risks arising from games, falls and alcohol, in a lab environment. As a result, the court found there was not a “sufficient connection” between the employee’s behaviour and CRUK, and they were therefore not vicariously liable for their employee’s actions.
Another point for employers to bear in mind is the possible social media fall-out from a work party. Sharing a video of Mandy in Accounts drunkenly falling over at the party with all your colleagues may seem funny at the time, but may cause offence later on. Work party postings can also cause potential reputational damage for employers, as seen in a notorious Northern Irish case a few years ago of a Wagamama’s employee posting a video of himself, in uniform, snorting cocaine.
Points to note
Employers should remember they may be found liable for their employees’ improper behaviour at work-organised parties and other work events outside the office, especially where alcohol is paid for by the company.
This includes all forms of misbehaviour, such as sexual harassment, verbal aggression and offensive language.
However, the employer does have a defence to vicarious liability if it can show it took reasonable steps to prevent the wrongdoing from taking place. This can be done by:
Circulating an office email before the event highlighting that this is a work-related function, even if it is out of hours and at another location, and attaching a clear Christmas party policy so that everyone is aware what will be considered inappropriate behaviour.
The email should make it clear that the employer does not support any after-party that takes place, that any such event should be at a different location to the office party, and that it will not be making a financial contribution (such as paying for the alcohol).
Have clear policies in place on bullying and harassment, discrimination, alcohol & substance abuse and social media use.
Make sure employees are aware that any complaints they raise will be taken seriously and investigated properly and promptly.
While each case will be examined on its own facts, these recommendations should help minimise the risk of vicarious liability for the employer and disciplinary proceedings for the at fault employees.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.
If your business needs advice about the issues raised in this article or would like advice about reviewing and updating its policies, please contact the Employment team at [email protected] or call us on 0118 952 7284.