As we approach the joys of the Christmas period, many employers will also experience trepidation at the potential for the unwanted consequences of their employees celebrating the festive season with a little too much vigour.
It is not unusual for the employer to host or be involved in organising Christmas parties and in many cases charitable events to raise money for good causes. This brings about the prospect of employees over-indulging and misbehaving, perhaps at the event itself or in the ‘hangover’ period the following day.
This note summarises some of the risks that employers face and the preventative and disciplinary measures that they may take.
Misconduct, including acts of discrimination
There is little doubt that such events would be deemed to be an extension of the workplace if they should be organised by the employer or if employees should attend them at the request or behest of it. That being the case, it is likely that acts done by employees, whether or not under the influence of alcohol or some other intoxicating substance, would be considered to be done ‘in the course of employment’. Accordingly:
- The employer may be held vicariously liable (i.e. liable on a third-party basis) by an Employment Tribunal for acts of discrimination unless it is able to demonstrate that it has taken all reasonable steps to prevent the act occurring. To succeed with such a defence the employer would have to demonstrate to an ET that it had put in place policies, training and as appropriate prior disciplinary action to an extent reasonable to prevent the employee from behaving in that way. The employer would have to show not only that it generally had satisfied that test but that it had done so in respect of the offending employee.
- The employer could reasonably discipline, up to and including dismissal in an appropriate case, an employee for misconduct in any form that is performed at such an event. The conduct would be considered to be sufficiently connected to the employment relationship for it to be reasonable for the employer to act upon it.
Of course in any process the employer would need to observe, if it has one, to its substance abuse/misuse policy, but in broad terms the fact that an individual may be under the influence of and even subject to a dependency upon a substance will not normally excuse their behaviour.
Liability of the employer for loss, damage and personal injury
If a driver should consume alcohol or other intoxicating substance and be over the legal limit the following morning when driving a company vehicle or operating machinery the employer would face vicarious liability (but presumably be covered under its vehicle or other insurance policy) in the usual way in the event that there should be an accident caused by the employee that gives rise to loss, damage or personal injury. However, the alcohol/substance point would in effect be a secondary factor because the employer would face liability for damage/loss/injury caused by the employee whether or not s/he was under the influence.
The relevance of the alcohol/substance would likely be limited to the question of causation of the accident and it is inevitable that an employee who is under the influence of a substance is more likely to be deemed to have caused or contributed to the accident. Of course, whether or not s/he caused an accident, a driver who is found to be over the limit whilst driving on the public highway would face separate prosecution for the intoxication offence.
Potential criminal liability
The company itself could also face corporate manslaughter charges in the event that it should be considered that a death has been caused by serious management failings. Furthermore, there could be prosecutions under health & safety legislation and for gross negligence manslaughter of employees and other individuals (senior managers, directors, board members) who have a senior role in the company if there should be sufficient evidence and if it should be in the public interest to do so.
In order to limit the potential for the prosecution of the employer and/or senior managers it is recommended that the business should remind its employees of their obligations and the risks associated with consumption of alcohol and other substances. This would be best done by the sending of an email and the posting on noticeboards etc. of messages identifying the risks of such conduct arising and of the implications for the individual by way of disciplinary action, dismissal and prosecution.
Jacksons, through its Employment, Health & Safety and Regulatory Teams is able to provide specialist advice and policy documentation on all of these matters. If you should wish to seek our advice and/or support please contact Mark Foster, Head of Employment, at mfoster@jacksons-law.com or telephone 01642 356 500.
Please share the article
