At what point does an employer cease to be responsible for its employees’ actions?  This is a particularly pertinent question at Christmas time when parties, lunches and other celebrations and social events provide ample opportunity for alcohol fuelled employees to behave badly. 

An employer is vicariously liable for the acts of its employees during the course of their employment.  This includes responsibility for acts of discrimination and, as recently confirmed by the court in the Green and Majrowski cases, for non discriminatory harassment by employees. It also includes responsibility for employees’ negligence.  The big question at Christmas time is exactly what constitutes acting in the course of employment particularly  since most parties take place out of hours and/or off site and are often coupled with pre or post party drinking.

Firstly, just because discriminatory or harassing behaviour by employees is not done at the employer’s instigation or instruction, even if it is done without its knowledge, doesn’t mean that it is not in the course of employment.  Employers are expected to take responsibility for the behaviour of their employees, not least in preventing discriminatory and harassing behaviour.  Unless the employer can show that it took active steps to prevent such behaviour, for example, training, pro-active management of issues and stringently applied policies, then the employer will end up taking responsibility.  It is not enough simply to have nicely drafted policies, the employer has to show that it has used best endeavours to ensure that such behaviour does not take place if it is to avoid liability.

Secondly, tribunals have found employers to be liable for their employees’ unlawful actions even where these occur outside the workplace and after hours.  Each case will be determined on its own facts but there have been cases in which it has been held that employees meeting together in the pub directly after work or at social gatherings arranged through work (which would include a works Christmas party or a gathering at a pub) could constitute extension of the workplace.  On the other hand, one employer avoided vicarious liability for the violent and abusive behaviour of an employee which took place at an event which was organised through work but which took place at the weekend, at a public theme park where the general public was also present and at which most of the participants were friends and family not employees.  This latter scenario however, is not likely to apply to your Christmas bash.

What this means is that if your employees are in the pub after work but before the Christmas party you are likely to be responsible for any of their discriminatory, violent or harassing behaviour.  The question is perhaps more blurred where this type of behaviour takes place once the party has ended, perhaps at a nightclub or other drinking hole which employees have gone to in order to continue the festivities.  If some employees end up there on an impromptu basis, and this is not an organised extension of the Christmas party itself, it may be possible for the employer to distance itself from responsibility.

Don’t forget too that employers have a duty of care towards their employees which means that they need to take some responsibility for their employees after the party has ended.  If the employer knows that an employee has drunk too much or see them getting abusive, it ought to take active steps to try to calm the situation down or ensure that the employee gets home safely without incident.