Employers may face the same predicament every year at the staff Christmas party. Drunken antics, inappropriate innuendo and the odd brawl. But how far are they liable for their employees’ actions? Usually employers are liable where the actions of an employee are committed “in the course of employment”. Here we look at what that might mean.

In our article on this subject a year ago (Pregnancies, Promises and Punch-ups) we reported the High Court’s  surprising decision in Bellman v Northampton Recruitment Ltd that the employer was not vicariously liable for the actions of its Managing Director (Mr Major), who punched an employee during drinks at a hotel following the work Christmas party.  In October this year however, the Court of Appeal upheld the victim’s appeal. The key points taken into account by the Court were that:

  1. The drinks occurred on the same evening as the work event paid for and orchestrated by the managing director.
  2. Despite the time and place, Mr Major chose to wear his “metaphorical managing director’s hat” and to deliver a lecture to his subordinates. He was not merely one of a group of drunken revellers whose conversation had turned to work.
  3. The attack arose out of a misuse of the position entrusted to him as managing director. The discussion had been focused on business matters for around an hour before his managerial decision-making was challenged.
  4. Ultimately the participants in the drinking session attended the Christmas party in their roles as staff members and managing director.

It was therefore held that there was sufficient connection between Mr Major’s job and the assault for his actions to be considered “in the course of employment” to render the company vicariously liable for Mr Major’s actions.

But the Court of Appeal also made the point that liability will not arise just because there is an argument about work matters between colleagues, which leads to an assault, even when one colleague is markedly more senior than another. It will really depend on the facts of the particular situation.

For discriminatory actions and harassment, the test for whether the actions are committed “in the course of employment” is wider. It seems more likely that an employer will be held liable in work-related social scenarios. Some situations may be considered an “extension of employment”; for example, a colleague’s leaving party, or even informal drinks with colleagues in the pub immediately after work.

Does the employer have a defence?

Yes –  if it can show that it took all reasonable steps to prevent its employee committing a particular discriminatory act or committing that type of discriminatory act.

In one case, the existence of a “dignity at work” policy together with evidence that the employer had followed the procedures in that policy was held to be enough to establish a defence.

Be warned that mere existence of a policy is not sufficient however; employers must take practical steps to implement it.

We would suggest employers:

  • Implement an equal opportunities policy and an anti-harassment and bullying policy.
  • Make all employees aware of the policies and their implications.
  • Deliver training to managers and supervisors in equal opportunities and harassment issues.
  • Take steps to deal promptly and effectively with complaints, including taking appropriate disciplinary action.

Should you require any support or guidance on how to best protect your business during the festive season, please do get in touch with a member of our team.