8th May 2019
How can an employer be liable for its employees’ actions?
Employers can be liable for wrongful acts (or omissions) committed by its employees where there is a sufficiently close connection between the employees’ actions related to the employees ‘field of activities’, which falls outside the scope of the contractual relationship. This is commonly known as ‘vicarious liability’. The court will look at the nature of the job the employee was doing and whether there is a sufficient connection to the act carried out.
In most cases, the employment relationship would deem the employer to be vicariously liable for the employees’ wrongful acts in instances where the wrongful act was committed, for example, during the employee’s contracted hours, at the premises of the employer and was somehow related to the nature and field of his work.
However, what would be the case if an employee committed an act outside of the employment relationship, such as at a Christmas party or work-related social gathering?
The case of Shelbourne v Cancer Research UK (2019) explores the implications of modern vicarious liability involving a negligent act committed by an employee at a Christmas party which seriously injured another employee.
In this case, the employer held a fairly-typical Christmas party at one of its premises which involved the consumption of alcohol. However, the employer undertook a risk assessment for the party beforehand which focused on telling employees’ not to go into restricted areas (laboratories), as well as considering the risks to playing games and uneven surfaces; whilst even recruiting some security staff to supervise the revelling.
When dancing, a visiting scientist at the premises (not employed, but not relevant, as it would still give rise to a sufficiently close relationship) picked up an employee, lost his balance and dropped her, resulting in serious back injuries to the employee. The injured employee sued Cancer Research UK for negligence because of their alleged failure to:
- Obtain written declarations from employees confirming they won’t act inappropriately;
- Carry out a more detailed risk assessment including risks from all forms of inappropriate behaviour;
- Train staff who organised the event; and
- Conduct special training for those conducting the risk assessment.
The court rejected the employees’ above arguments and re-affirmed the duty of care which an employer owes to its employees remains heavily context-dependant, including in situations of work-related social functions where alcohol is consumed. The court emphasised it would be going too far to monitor every single eventuality from every possible risk at such common and culturally accepted events, and the court was not willing to set the bar that high.
The court accepted that the fairly-standard, yet appropriately drafted, risk assessment was sufficient, and could not have possibly included every single untoward risk. The court further said the visiting researcher’s nature of work was simply his research activities so his ‘field of activities’ was not sufficiently related to his actions.
In a not too dissimilar case, impromptu drinks were had after the event of a Christmas party (found related), during which the Managing Director punched an employee causing injuries. The Court of Appeal found the company was vicariously liable for the MD’s actions as the scope of the MD’s ‘field of activities’ was all-encompassing and he was always ‘on-the-clock’. The MD misused his dominant position to re-assert his authority when challenged by the employee, thus establishing a sufficient connection between the act and the employment relationship.
The above cases are thought-provoking examples of where the boundaries may lie for vicarious liability in situations of work-related social gatherings. The outcome may have been different if Cancer Research’s Christmas parties regularly involved untoward, troublesome behaviour; which would have obliged the employer to go beyond what would usually be expected, as they could then reasonably foresee some injury.