1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar

When is an after-party an after-party? Christmas parties and vicarious liability claims

It’s that time of the year again – Christmas parties and work socials galore. That heady mix of festive spirit and copious amounts of free alcohol. Add in work colleagues and things can get a little bit sticky. As some employers have learned the hard way, there is a fine line between the point at which a work event ends and a private social event begins.

Where mishaps do occur, employers could inadvertently find themselves vicariously liable for the actions of their employees.

An employer can be held responsible for the actions of employees “in the course of employment”. The employees actions must be “so closely connected with [the] employment that it would be fair and just to hold the employers vicariously liable”.

Whether something is done “in the course of employment” is highly fact sensitive, which is demonstrated by some of the seemingly conflicting case law in this area of vicarious liability.

Bellman v Northampton Recruitment Ltd [2016]

In this recent case, a manager assaulted a director after a Christmas party, causing him serious brain injury. As is not uncommon, after the Christmas party, a group of employees carried on the night with another drink at a hotel nearby. The relevant assault took place at the hotel at 3am. The High Court held that the employer was not vicariously liable, as the employee’s actions were not sufficiently connected to his employment. The Court considered that the after-party was a private event as it had taken place in a different venue to the work Christmas party, a significant period of time had passed since the party had ended, it was not pre-planned and the employer was not paying for the drinks.

Livesey v. Parker Merchanting Ltd [2004]

By contrast, on a similar set of facts, the employer in this case was found vicariously liable for the actions of its employee who sexually assaulted a colleague after a work Christmas party. The distinguishing fact was that the assault occurred in the car on the way home, immediately after the party. The Court found that the conduct in question was a continuation of sexual harassment by the employee at the work event and, as such, was in the course of employment.

What can employers do to mitigate some of the risks?

The cases demonstrate how difficult it can be to draw boundaries between what is a work event and what is a social event. Employers should have adequate policies in place to set out what behaviours will not be tolerated. Employees should be reminded of these policies before work events and training should be provided where appropriate.

When is an after-party an after-party? Christmas parties and vicarious liability claims

One small step for the adversarial system, one giant leap for litigants in person

The President of the Employment Tribunals (England and Wales) has issued Presidential Guidance on the protocol for “judicial assessment” in the Employment Tribunal. The guidance came into force on 3 October 2016. Employment Tribunals must have regard to the guidance, but they are not bound by it.

Judicial assessment is an unbiased review undertaken by an employment judge on the merits of the parties’ respective claims (including liability) and/or the potential remedy. This takes place at an early stage of the proceedings, typically at a preliminary hearing, and it is a confidential assessment with the aim of encouraging settlement between the parties. The assessment can only take place subject to the parties’ consent and after the parties formally identify the issues and the judge gives case management orders.

The protocol makes it clear that the parties cannot refer to the assessment in later stages of the litigation. Therefore, if they do not succeed in settling the claim, the independent judge conducting the final hearing will not be aware of the outcome of the judicial assessment. As such, the judge who carries out the assessment will make it clear that this assessment is provisional and the result of a final hearing may well differ. This judge will then normally cease having any involvement in the case (except for day-to-day case management of the proceedings).

It appears that this procedure will be particularly helpful for litigants in person (a party to a claim without professional representation) as it will highlight strengths and weaknesses of their case that they may not otherwise be able to identify. In any event, this development marks an interesting second small step away from a purely adversarial system in the Employment Tribunal, following the introduction of judicial mediation 10 years ago.

One small step for the adversarial system, one giant leap for litigants in person

Insight: UK Employment Law Round-up – September 2016

UK Employment Law Round-up In this issue, we look at whether a job applicant can gain protection under the Framework and Equal Treatment Directives if the purpose of the application is to gain the status of someone who can make a claim to gain compensation.

In our case law review, we will also re-visit what constitutes “normal remuneration” when calculating holiday pay and whether a reasonable adjustment for a disabled employee can extend to payment protection.

We provide guidance on how offers of employment should be made to ensure that communication about employment is not misinterpreted by prospective employees.

We also report on the most recent developments regarding the Apprenticeship Levy and the changes to the taxation of termination payments.

Read the full newsletter here.

Insight: UK Employment Law Round-up – September 2016

Insight: How to protect your business from badly behaving employees

HR Magazine published our article today on considerations for businesses when discovering foul play by their employees. This article also covers the impact of the European Union Trade Secrets Directive and the recent pro-employer decision in Arthur J. Gallagher Services (UK) Limited v Skriptchenko.

Click here to read the full article.

Insight: How to protect your business from badly behaving employees

Insight: UK Employment Law Round-up – May 2016

During our Annual Update seminar on 27 April 2016, we discussed some of the legislative changes that employers should look out for over the next 12 months. One of these was the Trade Union Bill having now received Royal Assent.

UK Employment Newsletter 3DCoverIn this issue we also look at the EU’s Trade Secrets Directive and how this could impact on whistleblowers in the UK, as well as the Government’s call for evidence on the use of non-compete clauses.

We will also analyse cases which look at whether employees have a right to privacy in the workplace regarding email communications, whether terms contained in an employee handbook can be incorporated within an employee’s contract of employment and how tribunals should approach the remedy of re-engagement.

Read the full newsletter here.

Insight: UK Employment Law Round-up – May 2016

Insight: UK Employment Law Round-up – April 2016

29280_Employment-Round-Up_THUMBNAIL In this issue, we consider the requirements of recent legislative changes including the new whistleblowing regime for financial institutions and the updated employment rates/limits for 2016/2017. Hot on the heels of International Women’s Day, we also explain how the spotlight on diversity continues with the release of EHRC guidance on improving diversity at senior levels of business. Another complicated area for clients can be dealing with issues surrounding PHI schemes and we analyse a recent decision in this field.

Read the full newsletter here.

Insight: UK Employment Law Round-up – April 2016

Insight: UK Employment Law Round-up – February 2016

UKEmploymentLawRoundUp Feb2016 In this edition we will be taking a look at some employment issues which have been making headlines and at some of the more technical points raised in recent case law. We will consider the Government’s recent release of its hotly awaited consultation paper on gender pay gap reporting; and the implications of the High Court’s recent ruling that parts of the criminal records checks rules are ‘arbitrary’ and unlawful. We will also delve into a recent tax decision of the Upper Tribunal considering the taxation of injury to feelings settlement payment; a couple of EAT cases highlighting its approach to Early Conciliation and the Tribunal’s powers to make case management orders; and a rare TUPE case dealing with the issue of temporary cessation of work.

Read the full newsletter here.

Insight: UK Employment Law Round-up – February 2016

Insight: Vicarious liability and the dangerous repercussions of a rogue employee

Imagine the scenario: you have a disgruntled employee who decides to leak details about your staff on to the internet. You then receive a High Court claim from your staff because of this employee’s action. Can your staff really bring a claim against your business? The company did not leak the data, the employee did.

This is the situation that supermarket chain Morrisons now faces in the High Court, in what we are sure will be a hotly contested case. Andrew Skelton, a senior auditor at Morrisons, was disciplined for using the post room to send out personal packages. On March 14, 2014, Skelton (seemingly in an act of revenge) published online and sent a local newspaper personal data relating to 99,998 Morrisons staff. This information included bank account details and National Insurance numbers. Skelton was jailed for eight years in July 2015 for his actions.

On October 26, 2015, Senior Master Barbara Fontaine at the High Court (Queen’s Bench Division) allowed affected staff to pursue a group claim against Morrisons. At the moment, we understand that nearly 2,000 staff are part of this action but the Senior Master has stayed the proceedings for a four-month period to allow other affected employees to join the claim.

Read the full article here.

Insight: Vicarious liability and the dangerous repercussions of a rogue employee