It’s that time of the year again – Christmas parties and work socials galore. That heady mix of festive spirit and copious amounts of free alcohol. Add in work colleagues and things can get a little bit sticky. As some employers have learned the hard way, there is a fine line between the point at which a work event ends and a private social event begins.

Where mishaps do occur, employers could inadvertently find themselves vicariously liable for the actions of their employees.

An employer can be held responsible for the actions of employees “in the course of employment”. The employees actions must be “so closely connected with [the] employment that it would be fair and just to hold the employers vicariously liable”.

Whether something is done “in the course of employment” is highly fact sensitive, which is demonstrated by some of the seemingly conflicting case law in this area of vicarious liability.

Bellman v Northampton Recruitment Ltd [2016]

In this recent case, a manager assaulted a director after a Christmas party, causing him serious brain injury. As is not uncommon, after the Christmas party, a group of employees carried on the night with another drink at a hotel nearby. The relevant assault took place at the hotel at 3am. The High Court held that the employer was not vicariously liable, as the employee’s actions were not sufficiently connected to his employment. The Court considered that the after-party was a private event as it had taken place in a different venue to the work Christmas party, a significant period of time had passed since the party had ended, it was not pre-planned and the employer was not paying for the drinks.

Livesey v. Parker Merchanting Ltd [2004]

By contrast, on a similar set of facts, the employer in this case was found vicariously liable for the actions of its employee who sexually assaulted a colleague after a work Christmas party. The distinguishing fact was that the assault occurred in the car on the way home, immediately after the party. The Court found that the conduct in question was a continuation of sexual harassment by the employee at the work event and, as such, was in the course of employment.

What can employers do to mitigate some of the risks?

The cases demonstrate how difficult it can be to draw boundaries between what is a work event and what is a social event. Employers should have adequate policies in place to set out what behaviours will not be tolerated. Employees should be reminded of these policies before work events and training should be provided where appropriate.

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