Vicarious liability: Avoiding HR disputes over the festive period

Insight, Workplace Wellbeing

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We have all seen the adverts telling us to drink responsibly and with many fully intending (and rightly so) to spread cheer and merriment, the topic of vicarious liability is no more pertinent than at this time of year!

Many employers want to reward their staff by putting on a party this Christmas, whether it be a meal, a few drinks or a night out. Certainly from an employee’s perspective, this is something to look forward to and in some cases, agonise over what to wear and what to sing for the Karaoke!

It has been a long established legal principle (known as the “doctrine of vicarious liability”) that an employer is responsible for the actions of its employees, which occur in the course of their employment.

Definition of vicarious liability

This is a principle of strict, no-fault liability for wrongs committed by another person. It often occurs in employment relationships where an employer may be liable for the wrongs of an employee where there is sufficient connection between those wrongs and the employee’s employment. It does not matter that the employer itself has committed no wrong.

With this in mind, and without wanting to be a modern day Scrooge, during this season it is important to follow the example set by the ‘drink responsibly’ slogans. We would suggest that you take the opportunity to remind all of your staff that the usual standards of conduct and behaviour are expected at any work related event, however informal, including the Christmas party. After all, a breach of the usual standards of conduct can be treated as a formal disciplinary issue.

How far does the responsibility extend?

There has been much debate over where an employer’s responsibility ends, especially when an employee essentially goes off on a “frolic of his own”.

Unfortunately for Morrisons, the actions of one of its employees saw the large chain in spotlight this year. The Supreme Court held Morrisons responsible when its employee assaulted a customer, despite the employee’s actions not being something Morrisons would have predicted (the employee, unprovoked, violently assaulted a customer).

In contrast, when an employee of a recruitment company embraced the merriment a little too much and caused a fellow employee (and friend of 40 years) severe and permanent brain damage after the work Christmas party but during informal ‘after party drinks’ at a different location, the employer escaped liability because the incident occurred after the work event ended and ‘outside the course of employment’.

What is the answer?

The devil is no doubt in the detail as to why the court decided these cases so differently so, although you cannot possess a crystal ball, you can take steps to limit your exposure. See our top tips below.

The team at Price Bailey Legal Services consider it important that informal staff events are regularly held to benefit ‘Workplace Wellbeing’ they are great for improving employee engagement and helping teams feel valued. Therefore we do not consider cancelling events to be the answer. But by setting clear expectations before the event and breeding a culture of ‘having fun responsibly’ will hopefully result in making your Christmas party and future events successful.

Definition of workplace wellbeing

We like the Chartered Institute of Personnel and Development definition, which is: “Creating an environment to promote a state of contentment which allows an employee to flourish and achieve their full potential for the benefit of themselves and their organisation”. Although we consider that the wellbeing of the business is as important as the wellbeing of workforce and it is the balance of both that truly results in “Workplace Wellbeing”.

8 Steps to avoid disputes this Christmas

1. Consider moderating the level of alcohol consumption at the work event. For example by including activities that are not alcohol related.

2. Create a ‘Christmas Party Guide’ containing examples of acceptable and unacceptable party behaviour, whilst at the same time encouraging employees to have fun and ensure celebrating the festive period and the successes of the year.

3. Issue a reminder to staff that the usual standards of behaviour are required when attending a work event, a responsible attitude towards alcohol is expected and to be mindful of being legal to drive the following day.

4. Arrange taxis for employees or encourage employees to stay in a hotel to ensure that they do not drink and drive and show that in addition to you wanting your employees to behave responsibly, you too are a responsible employer.

5. Ensure your disciplinary procedure is up to date and employees are aware that misconduct, even at informal events, can lead to formal disciplinary action.

6. Provide adequate training and understanding of your Equal Opportunities and Anti-Harassment and Bullying policies (ideally not just before the Christmas party but as part of your overall management training).

7. Engage with your managers so that they are looking out for situations that could turn fractious. Most importantly, ensure that they are equipped with the tools to know how to deal with tricky situations.

8. In the longer term, seek to embed the responsible attitude in your culture. You could include within induction and promotion processes a section dedicated to ‘Unacceptable Behaviours’. Why don’t you run specific training for your managers on anti-harassment and bullying and how to cope with tricky situations and difficult conversations? You could ensure that all complaints are taken seriously and any unacceptable behaviour is dealt with swiftly.

This post was written by Price Bailey Legal Services Partner, Victoria Pratley. To find out more information on the topic above get in touch with Victoria at vmp@pricebaileylegalservices.co.uk or connect with Victoria on LinkedIn.

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