If a social event can genuinely be classed as an extension of employment, the employer might find that it is held vicariously liable (i.e. the employer is liable) for the actions of its employees at the event. This would include incidents at office parties, client functions and work-organised social events such as leaving parties or drinks.
As the law now stands, employers can be vicariously liable in either negligence or under discrimination legislation for acts committed by their staff that they may consider to be completely outside their responsibility.
Employer liability is unlikely to cover an incident where colleagues met up informally for a drink or where a chance meeting between two employees outside working hours results in a fight. In between these categories, however, there are a number of grey areas. One such recent case, where it was not clear whether or not the employer was liable for the actions of its very senior employee, concerned a Court of Appeal case.
In that case, Mr Bellman was a sales manager for a recruitment firm. Mr Major was the firm’s managing director. A Christmas party was organised. Following the party, Mr Major arranged taxis to transport staff to a hotel where they continued drinking, with drinks mainly paid for by the company.
At 3am, well after the Christmas party had ended, an argument broke out at the hotel between Mr Major and Mr Bellman about a new employee’s placement and terms, amongst other matters. Mr Major got cross and summoned staff to give them a long lecture on his authority. When Mr Bellman questioned Mr Major's decisions, Mr Major punched Mr Bellman twice, ultimately causing Mr Bellman brain damage.
The court was asked to decide whether the company (the employer) was vicariously liable for Mr Major’s actions. The judge in the High Court held not, as the assault took place during unplanned drinks, which took place after the employer’s Christmas party and which were not organised by the employer. However, the Court of Appeal disagreed. It decided that Mr Major owned the company, he was its most senior employee and had full control over how he conducted his role. When he lectured his staff at the after party, he was establishing his authority in his Managing Director’s role. Additionally, that party was not a purely social event happening to involve colleagues, but a follow-on from an organised work event attended by most of the company’s employees, where the company paid for taxis and drinks.
In those circumstances, the Court of Appeal decided there was a sufficient connection between Mr Major’s wrongful conduct and his role and accordingly the company was vicariously liable for the assault.
Whilst this is, fortunately, a very unusual and extreme case of wrongdoing, some behaviour, particularly when alcohol is present, could however result in lower level risks to employers (such as the risk of employees raising formal grievances against other staff members). We advise employers to provide a clear written policy on the standards of behaviour expected outside the workplace, specifying what kinds of behaviour are unacceptable and may result in disciplinary action.
Unacceptable behaviour that might result in a gross misconduct dismissal would include excessive drunkenness, the use of illegal drugs, harassment, violence, serious verbal abuse, or assault of either another employee or a third party. An employer that has a policy in place that they both monitor and enforce, is less likely to be found to be negligent or found to be facilitating discrimination. An example of a template “conduct of employees outside the office” policy can be found on the FSB law hub.