Christmas parties – what happens when it all goes wrong?

In this case, a manager and director went to a hotel, with other colleagues, following the Christmas party and continued to drink heavily. At the hotel, the director assaulted the manager, leaving him with serious brain injury and unlikely to ever work again. The decision was made to sue the company rather than the director as the company were more likely to meet any judgment.

The test for vicarious liability is whether the tort was so closely connected with the employment that it would be fair and just to hold the employers vicariously liable. Therefore, the court looked at the question of whether, at the time of the assault, the director was acting in the course or scope of his employment.

It was found that if the assault had happened at the Christmas party then the employer may have been liable but this was a private drinking session and the employer was therefore not vicariously liable. The Judge described the drinks at the hotel as an ‘impromptu drink’ and not a planned extension of the Christmas party. This was despite the fact that the employer was paying for the taxis to the hotel as many employees were staying there and there was an expectation by the employees that the company would pay some of the drinks bill. The fact that the fight broke out over a work discussion was also not enough to be in the course of employment.

It remains difficult to assess where the boundaries lie in determining whether an employer will be vicariously liable for the actions of its employees. Case law on this matter generally appears to consider the following points:

• The extent that the employer created a material risk of harm, as opposed to merely providing an opportunity for the act to occur.
• Whether the act occurs during a work social event or afterwards and whether there is a temporal and substantive difference between the two.

This ruling is a reminder that each case is to be considered on its own facts. If you are concerned about how to manage behaviour over the Christmas period, a member of our Employment team would be happy to discuss this with you.

This content is correct at time of publication