Vicarious Liability Reviewed - Christmas Party Misconduct14th Dec 2018
You all know the drill (and the hazards) when it comes to Christmas parties: as an employer you are liable for the actions of your employees because the party is legally a work event. This is called vicarious liability.
You also know that you must have the right legal procedures in place. But is this knowledge alone enough to protect you from potential claims?
Further on in this post you will read how an employer was held vicariously liable for a drunken assault by a managing director on an employee…even though it took place at an unscheduled drinking session after the main Christmas party.
And remember, even a solid defence could still mean a hollow victory if the torrid details of the case are splashed all over the TV, the internet and the newspapers.
Prevent Trouble Or Nip It In The Bud
So what’s the solution? Prevention is better than cure. You have to make it absolutely crystal clear to your employees that no transgressions whatsoever will be tolerated.
Your employees must be left in no doubt:
- that your office Christmas party is very much a work event (and also that after-parties are not an excuse for a drunken free-for-all)
- that behaviour must be appropriate at all times
- what constitutes unacceptable behaviour
- what will happen if they overstep the mark at the party or afterwards.
How You Are Your Liable For Your Employees’ Actions
Employers’ liability for the actions of employees (vicarious liability) is an area of law that is developing. The courts are ready to recognise employer liability for employee acts.
Their view is summed up in the case of The Catholic Child Welfare Society and others (Appellants) v Various Claimants (FC) and The Institute of the Brothers of the Christian Schools and others (Respondents).
Giving judgment, Lord Phillips identified the underlying policy considerations as follows…
35. … “There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied:
- the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability
- the tort (wrongful act) will have been committed as a result of activity being taken by the employee on behalf of the employer
- the employee's activity is likely to be part of the business activity of the employer
- the employer, by employing the employee to carry on the activity, will have created the risk of the tort committed by the employee
- the employee will, to a greater or lesser degree, have been under the control of the employer.”
Recent Examples Of Case Law
- In Mr A M Mohamud (in substitution for Mr A Mohamud (deceased)) (Appellant) v WM Morrison Supermarkets plc (Respondent), the Supreme Court held a supermarket vicariously liable for an employee’s unprovoked violent assault on a customer.
Mr Khan was employed in a petrol station. A customer, Mr Mohamud, asked whether it was possible to print some documents.
Unprovoked, Mr Khan ordered Mr Mohamud to leave, used threatening and racist language and followed Mr Mohamud out to his car, punched and kicked him and told him never to come back. This was found to all be in connection with the employer’s business.
- In Bellman v Northampton Recruitment Ltd  EWCA Civ 2214, a company was vicariously liable for an assault carried out by the managing director on another employee during an unscheduled drinking session after a Christmas party.
The drinking session was not part of the Christmas party but the attack happened after the managing director’s decision-making had been challenged by the victim.
- In Wm Morrison Supermarkets Plc v Various Claimants  EWCA Civ 233, the Court of Appeal held that a disgruntled employee’s posting of colleagues’ confidential details on the internet was:
- in breach of the Data Protection Act 1998
- the tort of misuse of private information
- in breach of the duty of confidence
- sufficiently connected to his employment.
Get Expert Advice On Employment Law
Given the broad nature of vicarious liability, it is vital to have the appropriate policies – and also the correct training – in place.
Have a fun, relaxing and enjoyable Christmas but make sure that everyone knows where the lines are drawn.
For further information, contact employment law solicitor Neil Andrews, a Partner at Coles Miller and Head of the Commercial Department.