Canada: Planning Your Annual Party? Give Your Employees The Right Gift This Year: A Safe Holiday Party

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 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 as a result of such an event. This is also referred to as employer host liability. Employers can also be liable for harassment or sexual harassment as a result of activities or situations 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 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 based on 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 necessary steps to prevent such harms, to the best extent possible.

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 injured employee. In the trial judge's view, the employer owed the employee a duty of care in the circumstances and should have ensured that she did not attempt to drive home herself. The trial judge held that the employer should have 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.

The trial judge also held that offering a cab to its employees generally, and specifically offering to drive the plaintiff home did not discharge the employer's duty. As one alternative course of action, the employer could have contacted the plaintiff's husband to pick her up from work. The employer's arguments that taking the plaintiff's car keys would have amounted to theft, or forcing her to take a taxi would have constituted kidnapping or confinement, was rejected.

On appeal, the Court of Appeal reversed the trial judge's decision, determining that the judge had erred in discharging the jury and in dealing with the issue of causation. Based on the trial judge's errors, a new trial was directed. Nevertheless, the trial judge's findings regarding the potential for an employer to be liable for injuries resulting from serving alcohol at a work party are instructive. If an employer is responsible for an employee's intoxication (i.e. causation can be proven), liability may result.

As a result, when planning an office party, here are ten tips to consider as a means to minimizing the risks of liability:

(1) Consider whether the party should be alcohol-free;

(2) If alcohol will be available, avoid open bars or unlimited alcohol. Instead, consider offering one or two drink tickets a person;

(3) Ensure that alcohol consumption can be adequately monitored and limited and that no one is served to the point of intoxication;

(4) Assign one or more management level persons to oversee the event. At the very least, a dedicated individual should stay sober and observe and assist employees and guests;

(5) Consider having the party during the day rather than in the late afternoon or evening as transit options may be more flexible and the party is less likely to spill over into a local bar;

(6) Offer non-alcoholic beverages and food;

(7) Offer cab chits, local hotel accommodations or some other method of ensuring that employees have safe transportation home;

(8) Advertise alternate travel options in advance and discourage employees from bringing their cars to work on the day of the party. Consider ways to ensure that employees actually use alternate travel options, such as handing in car keys;

(9) 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

(10) Keep work-related events short and offer activities beyond drinking.

We wish all of you a very happy and safe holiday season.

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