It’s Christmas time, there’s no need to be afraid … or is there?
As an employer, you may be liable for the behaviour of your employees outside of working hours.
Section 109 of the Equality Act 2010 says that anything done by a person ‘in the course of their employment’ must be treated as also done by their employer, regardless of whether or not it is done with the employer’s knowledge or approval.
In the case of Jones v Tower Boot Co (1997), the ‘course of employment’ criteria included work-related social gatherings. It can however be a grey area when there are impromptu gatherings after work that are not officially organised by the employer. Generally, the office Christmas party will be covered, and following a recent Court of Appeal decision, the after-party gathering too!!
Back in 2016 employer’s liability seemed somewhat limited in Bellman v Northampton Recruitment Ltd. In this case one of the employer’s directors assaulted an employee, leaving them brain damaged. This altercation took place at 3am, after some of the party goers decided to go onto another establishment once the official work party had finished.
The assaulted employee claimed that the employer was vicariously liable for the actions of the director, and claimed damages. The claim for vicarious liability was originally dismissed by the High Court. It was held that “a line could be drawn under the evening’s events … What followed later arose in the context of entirely voluntary and personal choices by those present to engage in a heavy early hours drinking session.”
However, the High Court decision was overturned by the Court of Appeal this year, and it was held that there was in fact a sufficient connection between the job and wrongdoing, meaning that the Company should be vicariously liable. In the Court of Appeal’s view, the attack arose out of a misuse of the position entrusted to him as managing director. It was also relevant that the drinks occurred on the same evening as the work event which was paid for and orchestrated by the managing director.
This most recent decision makes it clear that if one employee harasses another employee in an organised social gathering outside of work (like an office Christmas party or even the after-party), then this could open a claim against both the employer and the individual employee responsible for the harassment.
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