It may be the most wonderful time of the year but, for employers, the holiday season can introduce new or additional liabilities. Employers need to be particularly careful when hosting employee or work-related functions where alcohol is being served or consumed. In such circumstances, employers can be found liable for negligence if a reasonably foreseeable injury to an employee occurs during or as a result of such an event. Employers can also be liable for harassment or sexual harassment occurring at workplace parties and related functions.
Employers do owe a duty of care to their employees in certain situations. Where the employer is hosting a work-related event involving the serving or consumption of alcohol, the employer's duty of care has been held by at least one court to be higher than the duty owed by a commercial host (i.e. a bar or restaurant) to its patrons.1 This higher duty is justified by the fact that an employer has an obligation to provide a safe workplace. By permitting or encouraging alcohol consumption, the employer introduces an element of risk. In doing so, it is reasonably foreseeable that the risk will lead to harm. Employers therefore have a positive obligation to take the steps necessary to prevent, as far as possible, such harms from occurring.
There have been several important cases involving employer liability arising from work-related events. Perhaps the most well known is Hunt v. Sutton Group Incentive Realty Inc.2 In that case, the plaintiff sustained serious injuries in a motor vehicle accident following an office Christmas party on the employer's premises. Free and unlimited alcohol had been provided by the employer. On her way home, the plaintiff stopped at a tavern where other employees had gathered to continue the festivities and consumed more drinks. The accident occurred after the plaintiff left the tavern. The accident was found to have resulted largely from the plaintiff's intoxicated state; although, the situation was complicated by a winter storm and poor driving conditions.
At trial, the employer was found to be liable in negligence to the plaintiff. In the trial judge's view, the employer owed the plaintiff a duty of care in the circumstances and should have ensured that she did not attempt to drive home herself, or with anyone else who had been drinking. The trial judge also held that the employer should have foreseen or anticipated that employees might continue the party elsewhere and should have ensured that employees either had accommodation in a local hotel for the night or safe means of travel to their home. These findings were upheld on appeal.
As a result, when planning an office party, here are ten tips to consider as a means to minimizing the risks of liability:
- Consider whether the party should be alcohol-free;
- If alcohol will be available or served, avoid open bars or unlimited alcohol. Instead, consider offering one or two drink tickets a person;
- Ensure that alcohol consumption can be adequately monitored and limited and that no one is served to the point of intoxication;
- Assign one or more management or supervisory-level persons to oversee the event. At the very least, a dedicated individual should be responsible to abstain from alcohol and observe and assist employees and guests;
- Consider whether it is better to have the party during the day rather than in the late afternoon or evening when the party can more easily spill over into a local bar or pub and when public transit options may be more flexible;
- Offer non-alcoholic beverages and food;
- Offer cab chits, local hotel accommodations or some other method of ensuring that employees have safe transportation home;
- Advertise the availability of alternate travel options, in advance and discourage employees from bringing their cars on the day of the party. Consider ways to ensure that employees actually use the offered alternative travel options, such as handing in car keys as a condition of attending the party;
- In the event that an employee becomes intoxicated, ensure that the employee does not drink and drive and can reach home safely. As necessary, involve the employee's family or local police to assist; and
- Keep work-related events short and offer activities beyond drinking.
We wish all of you a very happy and safe holiday season.
Footnotes
1. Jacobsen v. Nike Canada Ltd. (1996), 133 D.L.R. (4th) 377 (B.C.S.C.).
2. [2002] O.J. No. 3109 (Ont. C.A.)
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