Category Archives: Christmas Party

Employer Found Not Liable For Work Related Assault

Naughty or niceThe Christmas festivities are now hopefully a distant memory for most of us. That is of course if your Christmas party was not a fertile source of inappropriate, and in some cases, violent behaviour of members of your workforce.

It is settled law that employers can be held liable for the acts of employees carried out in the course of employment, save where an employer is able to show they took all reasonable steps to avoid the act occurring. The principle of holding employers liable for the acts of their employees is known as vicarious liability. By way of example, in the case of Hawley v Luminar Leisure Limited, the Court of Appeal upheld the decision of the High Court that a nightclub exercised sufficient control over the actions of a doorman supplied to it by a security company, to deem the nightclub his “temporary” employer for the purposes of vicarious liability. The Court of Appeal found that the nightclub had sole vicarious liability and assessed the security company’s liability at nil.

This brings us to the more recent decision of Bellman v Northern Recruitment Limited, here the High Court ruled that an employer was not vicariously liable for a violent assault by its Managing Director on an employee at an impromptu drinking session after its Christmas party. This was because it was an ‘impromptu drink,’ which was not itself a part of the work Christmas party (despite the expectation that some or all of the bill would be met by the company), and because the mere fact that the assault had followed a discussion of work matters did not mean that it was necessarily ‘in the course of employment.’ The Court said that the incident had arisen in the context of ‘entirely voluntary and personal choices’ by those present to engage in a heavy drinking session.

What does this mean?

Employers may be able to escape liability in such circumstances, but it will depend on the facts of a particular case.

What should employers do?

Employers should exercise caution as this decision does not change the law, nor does it establish that post-Christmas party drinks are outside the scope of employment for vicarious liability purposes.

The possibility of inappropriate behaviour at work related social functions is entirely foreseeable and employers should be vigilant and proactive in ensuring that acceptable standards of behaviour are defined and communicated to all employees and workers.

For more information on how to manage the risk of vicarious liability, contact a member of the Employment Team at FG Solicitors on 01604 871143.

Your Company’s Liability For Unexpected Employee Shenanigans

SUMMARY:Naughty or nice

With the Christmas party season in full swing the courts have recently issued a judgment which proves a timely reminder of liabilities owed by employers when the festive frolics move from fun to violence.

The law:

Organisations are liable for reckless acts committed by their employees where it can be shown that the acts are so closely connected to their employment. The legal definition refers to employers being vicariously liable for such acts which are carried out in the “course of employment”.

The facts of the case:

In the case in question, the company – Northampton Recruitment Limited, held its Christmas party at a golf club. The party was attended by the Managing Director – John Major, its employees and their partners. After the party at the golf club had ended, some of the attendees, decided to return to the hotel at which some of their number were staying so that they could continue the festivities at an impromptu after-party.

The company paid for the taxis to take those guests to the hotel. It was also expected that the company would pay for some of their drinks at the hotel.

As the impromptu party at the hotel continued, conversation moved to work matters and a heated discussion ensued between Mr Major and one of the managers – Clive Bellman. At around 3am the heated discussion erupted into violence when Mr Major twice punched Mr Bellman. Mr Bellman was knocked unconscious, fell and suffered a serious brain injury as a result of the punches.

The court was asked to consider whether the company was vicariously liable for Mr Bellman’s injuries despite the assault happening after the company’s official Christmas party had ended. The court considered whether it could be said that, at the time Mr Major punched Mr Bellman, he was ‘acting in the course or scope of his employment”. In coming to its decision the court took account of the fact that:

  • Mr Major was authorised to act on the company’s behalf with a wide remit and that things were done ‘his way’.
  • An element of Mr Major’s role was  to motivate his employees – one such form of motivation being the company’s Christmas party, and
  • In his role as the Managing Director, Mr Major had sufficient discretion to authorise the company’s payment of taxis to, as well as accommodation and drinks at, the hotel.

However, the court decided that the fact that the offender was the Managing Director did not mean he should always be considered to be on duty when in the company of other employees. The court also made it clear that, although the subject of conversation giving rise to the assault was work –related, this in itself did not bring it the incident into “the course of employment”. The court concluded that, as the incident happened after the company’s official party ended without incident and at a time when the employees each took a personal decision to continue drinking heavily (albeit to some extent at the company’s expense), the incident was so far removed from Mr Major’s employment that the company could not be treated as vicariously liable.

Although a sad story, the court’s decision in this instance will come of some relief to employers. To ensure that your company’s parties and festivities can be enjoyed by all in the spirit in which they are intended, now may be the time to issue a gentle reminder to all that conduct rules are equally applicable at work related functions and social events regardless of whether they take place on/off site or in/out of normal working hours.

Bellman v Northampton Recruitment Ltd [2016] EWHC 3104 (QB) 

CONTACT DETAILS

If you would like advice about any of the issues raised in this article please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.

On The 9th Day of Christmas…

9th Day of ChristmasOn the 9th day of Christmas my employee said to me…“My line manager has promised me a pay rise in the New Year”.

2016 looks like a prosperous year for the employee! If however the employer did not intend for the employee to have a pay rise, does it have to honour the manager’s promise?

Before breaking the bad news to the employee that their fortunes are not on the up, the employer needs to understand whether it can deny the employee the anticipated pay rise. In doing so, the following needs to be considered:

  • The contract of employment. Most contracts will set out when and how salary will be reviewed. Often contracts provide for an annual review and, more importantly, that reviews do not automatically guarantee a pay rise. However, pay rise promises made in the context of the salary review scheme are likely to be binding.
  • Historical pay rises. If the organisation’s usual practice is to award predetermined salary increases on an annual basis there may be an implied contractual right to an annual automatic pay rise; the manager’s comments may therefore be in line with this practice. Vigilance should however be exercised to minimise the risk of this type of right being created.
  • The detail of the conversation between the employee and the manager. Irrespective of the terms of the employment contract and/or implied rights to a pay rise, the manager’s comment may in any event have created a right to a pay rise. The main consideration will be whether the manager intended to make a contractually binding promise and the onus is on the employer to disprove that this was the intended consequence. The following factors will as, a minimum, need considering when determining if the employee has any entitlement:

1. When was the promise made? For example, pay rise suggestions at the end of the Christmas party are unlikely to create legal obligations whereas promises made around salary review time during 1:1 meetings may well do so. However, do bear in mind that a manager’s promise made at a social event, or on other occasions outside the parameters of the salary review scheme, can bind the employer in some instances.

2. Is the employee’s account accepted by the manager?

3. What did the manager offer? Is there certainty about the terms of the offer – for example, the amount of the increase and the date from which it becomes payable.

Ultimately, promises made by managers do have the potential to bind their employer and as such can have costly consequences and managers should be reminded of this.

Contact Details

For more details about the issues in this article please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

On the 8th Day of Christmas…

8th Day of ChristmasOn the 8th day of Christmas my employee said to me…. “I didn’t enjoy the Christmas party as one of my colleagues kept harassing me.”

With the ever increasing demands of work the Christmas party is a great way to say thank you to staff. Most employees, when entering into the party spirit, will remember that there is a need to convey some semblance of good behaviour; sometimes, however a small number of staff are forgetful of this and lose all sense of propriety. In most instances their behaviour will be mildly amusing or annoying but in some cases it can become offensive and distressing.

Regardless of whether the party is away from the workplace and/or not in work time, employment law will still apply. This means employees who behave inappropriately towards their colleagues can be held accountable for their behaviour. Additionally, employers can be held responsible for the conduct of an employee towards a colleague where bullying, harassment and discrimination is involved.

It is therefore important to take seriously complaints of this type and not treat them any differently because the behaviour complained of occurred at a social event. Ignoring such a complaint could lead to a costly employment tribunal claim and reputational damage. Key considerations for an employer wishing to minimise these risks include:

  • Ensuring the complaint is dealt with quickly and impartially under the grievance procedure – the procedure should include the usual stages such as an investigation, meetings and an appeal.
  • Taking disciplinary action if the complaint is upheld.

However, proactive employers can also take preventative steps to minimise the risk of complaints in the first place, such steps can include:

  • Implementing and communicating an equality and harassment policy.
  • Providing equal opportunities training.
  • Dealing with complaints fairly and effectively.

Implementation of these simple steps should enable everyone to focus on the true purpose of the event and have fun at this time of year.

Contact Details

For more details about the issues in this article please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

On the 7th Day of Christmas…

7th Day of ChristmasOn the 7th day of Christmas my employee said to me… “I’ve had too much to drink at the Christmas party.”

Many employers celebrate the festive season by providing alcohol for employees at the Christmas party. It is easy to forget that in this season of good cheer employment law still applies and if alcohol is to be served at a work event, employers should consider the following to manage any potential legal risks:

  • Having a policy in place setting out the standards of conduct expected at work social events and the consequences of breaching the policy. The policy should be brought to the attention of all employees prior to any Christmas party.
  • Ensuring that the event is as inclusive as possible to avoid complaints of discrimination. Non-alcoholic drinks should be available for employees who do not drink alcohol for religious or other reasons.
  • Keeping an eye out for younger members of staff as employers cannot serve alcohol to under 18s. This is becoming a more relevant consideration as the number of apprentices increase in the workplace.
  • Having the party at a licensed venue. Whilst this will not entirely absolve the employer from its duty of care to its staff, the venue owner will be responsible for serving the alcohol.
  • Ensuring that the health and safety obligations towards staff are satisfied. Employers need to consider how those who are worse for wear from excessive drinking will be managed and who will deal with this, particularly if there is a free bar. It may be preferable to limit the amount of alcohol that can be consumed and make non-alcoholic refreshments readily available.
  • Making clear what the arrangements are in relation to lunchtime events if alcohol is to be served where employees may be returning to work in the afternoon. Does this provide a health and safety risk for example in a factory setting, or a reputational risk in a customer facing environment?
  • Providing food and entertainment, which can be a distraction to those who may otherwise spend the evening propping up the bar.
  • Reviewing the arrangements for staff to get home safely. There should importantly be a zero tolerance message about drink driving.
  • Taking prompt action if there are conduct issues to be dealt with after the event. This applies equally if complaints are made by employees about harassment… more about this on the 8th Day of Christmas.

This guidance equally applies to other corporate social events at other times of the year.

Contact Details

For more details about the issues in this article please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

When The Office Party Packs a Punch….

Xmas PunchSUMMARY: MBNA Limited v Jones considers the issue of consistent treatment in relation to dismissal where employees are involved in the same misconduct incident.

The office Christmas party season is looming and no doubt plans will already be underway for staff to be able to celebrate the end of the year together; the party season will also be a great opportunity to thank staff for their hard work during 2015.

Undeniably an office party can boost morale. Improved morale can be beneficial to the business but employers are more aware than ever of the potential pitfalls that can arise from their generosity. Previously well behaved employees can become uninhibited and reckless after consuming too much alcohol, forgetting that the same standards of workplace behaviour need to be adhered to at work functions or social events.

How would you deal with an employee who punches a colleague at the office social event? Dismissal will usually be reasonable for this type of behaviour, even if it occurred outside the workplace. Here’s the twist though, the victim subsequently sends threatening texts to their assailant. Would you still dismiss the assailant? Would you also dismiss the victim?

Many employers are aware of the need to treat employees consistently when it comes to dismissal. Otherwise, the dismissal could give rise to a costly unfair dismissal claim in the Employment Tribunal.

In the recent case of MBNA Limited v Jones, the Employment Appeal Tribunal had to consider the scenario described above and whether the dismissal of the assailant was unfair due to inconsistent treatment; the victim was only given a final written warning. The employer was found to have acted reasonably when deciding to dismiss the assailant as the leniency shown to the victim was irrelevant. The justification for this conclusion was that it would have been perverse to have treated a deliberate unprovoked punch as sufficiently similar to the texts subsequently sent as a response to being hit.

Recommendations for dealing fighting and violence in the workplace

When dealing with disciplinary issues and particularly those relating to fighting and violence, employers should be mindful of the following:

  • Ensure that employees know the type of behaviour which is unacceptable in the workplace; violent behaviour should be prohibited. Make it clear that conduct rules are equally applicable at work related functions and social events, even if off site.
  • Whilst it may be tempting to take short cuts where violence is involved and move straight to dismissal without further enquiry, always follow the Disciplinary Procedure. A thorough investigation is essential, particularly where a number of employees are involved in the incident.
  • If considering dismissing only some of the individuals involved, ensure that the difference in treatment can be justified. In the case described above there was a clear distinction.
  • When considering whether dismissal is an appropriate sanction, take into account long service, previous good conduct and provocation.

Case

MBNA Limited v Jones UKEAT/0120/15

Contact details

If you would like advice on any of the issues raised in this article, please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172  93 22

This update is for general guidance only and does not constitute definitive advice.