Oh no, not the Christmas party!
There is a joke amongst employment lawyers concerning the ubiquity of articles produced by law firms and HR consultants, usually in early October, warning of the risks posed to businesses by the office Christmas party. Usually such articles centre on the risk of sexual harassment cases, or perhaps some examples of “full and frank” discussions taking place between over-refreshed employees.
An employer can be held liable for the actions of their employees
The law on vicarious liability has expanded over the years and it is a subject we wrote about back in April, following in particular, the case of Mohamed v William Morrisons Supermarket Plc. There the supermarket was held responsible for the actions of its employee who racially abused and assaulted a customer who visited one of their petrol stations. Morrisons were held liable for the actions of that employee, despite the fact that they did not condone or authorise either racial abuse or physical assault upon a customer and, of course, such behavior was not within the scope of his role.
However, the relevant law is the “close connection test” and is there, in other words, a close connection between the wrongdoing of the employee and the duties of his employment? The case of Mohamed widened the scope of vicarious liability enormously and has left many employers thinking that there is very little they can do to prevent liability if an employee acts in that fashion.
Is the Christmas party an extension of the work place?
If an incident occurs at the Christmas party, caused by an employee, it is likely that the employer will be held responsible. However, a recent case (Bellman v Northampton Recruitment) has just been reported which not only legitimises employment lawyers and HR consultants writing about Christmas party issues but also explores further the law on vicarious liability.
In this particular case the company had its work Christmas party. After it finished a manager and a director and some other employees went on to a hotel and continued drinking until the director seriously assaulted the manager at 3.00am, leaving him with serious brain injuries.
The manager was advised to sue the employer and not the director personally. The reason for this is that the employer will have been carrying insurance and would have therefore had the resources to meet any judgement that the injured party might obtain. We are not told about the severity of his injuries other than it was a serious brain injury and thus one assumes that he would be seeking a significant amount of compensation. It is probably unlikely that the director will have had the personal means to pay.
What if the celebrations continue after the party?
The question therefore arose as to whether the company should be liable for the incident, which had taken place not at the work Christmas party but afterwards. In particular, the question arose as to whether at the time the director struck the blow he was “acting in the course or scope of his employment”? If so, then the company would be vicariously liable. In this instance it was held that the company was not liable because it happened during a private drinking session after the office Christmas party. However the judge also held that had the blow been struck during the Christmas party itself then the company would have been vicariously liable.
These cases all turn on their own facts. What would have been the result had the injuries been inflicted outside where the Christmas party was happening? Or rather than several hours later, perhaps a few minutes later? What if more employees had been gathered together, or more than one director of the business, would that have turned it back into an office party?
The point to take away from this case is that employers should remember that all those articles by lawyers and HR consultants are correct and the Christmas party is a potential source of litigation and dispute. Beware!