CHRISTMAS PARTY TIME: REDUCING RISK AND VICARIOUS LIABILITY – A PRACTICAL GUIDE
Christmas party season is upon us.
Over the last 20 years or so as employment lawyers we have become accustomed to calls from our clients on the ‘morning after the night before’ with their tales of woe. One of the key questions which often arise with whether the company bears vicarious liability for the actions of its employees outside the workplace.
Over the years HR practitioners have taken various approaches to try to mitigate the risks inherent in putting together staff and plying them with alcohol. At one extreme we have seen clients choose not to hold organised Christmas parties at all. Others have simply ensured that they have left the party before things slide too far downhill, perhaps on the basis that what they don’t see can’t hurt them.
The Court of Appeal have recently provided a timely reminder of the concept of vicarious liability and how it might be applied in such situations in the case of Bellman v Northampton Recruitment Ltd.
In that case, following a Christmas party, a group of revellers (including the managing director of the company), decided to carry on drinking at the bar in a hotel they were staying at close to the party venue. In the early hours of the morning a disagreement erupted and the managing director assaulted the claimant, Mr Bellman, resulting in life changing injuries.
At first instance, the High Court felt that there was an insufficient connection between Mr. Major’s employment and his assault of Mr Bellman. They found that the hotel bar was “an entirely independent, voluntary, and discreet early-hours drinking session of a very different nature to the Christmas party and unconnected with the Defendant’s business.”
The Court of Appeal, however, found that the managing director’s functions and remit were wide and said that while the post-party drinking session was not a “seamless extension of the Christmas party” he was “not merely one of a group of drunken revellers whose conversation had turned to work”. As a result the Court found that “there was a sufficient connection between Mr. Major’s field of activities and the assault to render it just that NR be held vicariously liable for his action”.
Given this, how can HR practitioners try to mitigate the risk of drunken frolics which may not turn out to be entirely of their own (to misuse the defence often turned to where an employee tries to establish vicarious liability on the part of the employer)?
The truth is that risks are an inherent part of this type of event.
The best that can probably done at this late stage is:
- ensure that all employees understand the company’s expectations in terms of their behaviour, and that these extend to their interactions with other employees;
- ensure that managers and directors are aware of their obligations in respect of their own behaviour and the behaviour of their subordinates, and that they can and will be held personally liable for their actions;
- deal with any instance of inappropriate behaviour swiftly and robustly as misconduct so that you might in future have an argument that the individual was off on a ‘frolic of their own’.
In practical terms, an email reminder to everyone to have fun but to look out for their fellow employees might be the main plank in achieving that above outcome. You’ll have to word it carefully to avoid being tarred as a party pooper but it is possible to make it work if you draft it carefully.
For next year, however, consider thinking more proactively, perhaps by rolling out a ‘respect’ campaign across the business with diversity training for managers and directors. In addition to getting across the key messages to reduce your ‘people risk’ this can be done in a manner which emphasises the positive cases for diversity and respect.
However you look at it, this can only be seen a positive investment in the business as, if done well, it can promote employee engagement (thereby improving employee performance) as well as reducing business risk and the chances of a vicarious liability argument succeeding against you.
