The 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.
And so it was that the final race of the F1 Calendar 2016 brought into sharp focus the controversy between Lewis Hamilton, three times world champion, and his employers Mercedes Benz as a result of the driver refusing to obey instructions to increase his speed during the race.
At first blush, it seems perverse that a racing driver needs to be told to drive faster during a race as adopting a purposive approach, the job is to drive as fast as you can with the aim of winning races.
In this particular case however, Hamilton was already winning the race and there appeared little risk that the result was in jeopardy. The issue was around the coveted world championship title as F1 aficionados will be only too well aware. Hamilton, being some nine points behind his team mate and only rival for the championship Nico Rosberg, could only win the world championship if his rival did not finish in at least third place.
Disciplining Hamilton for driving as he did in Abu Dhabi is akin to disciplining him for trying to win the world championship which seems perverse.
Employees who wilfully disobey the lawful and reasonable instructions of their employers leave themselves open to the risk of disciplinary action, which can include dismissal. Even without the benefit of actually seeing Hamilton’s contract of employment it is a safe bet that it will include provisions about the driver agreeing that he will obey team principal instructions and will possibly define the sanctions for failing to do so. Even in the absence of those written provisions, the law will imply a term into the contract that an employee will carry out all lawful and reasonable instructions of an employer. The interpretation of those three words is key to the extent to which Mercedes can discipline Hamilton for what was a clear defiance of express instructions.
Firstly, the instructions must be lawful, this can be interpreted to mean contractually sound as it goes without saying that illegal instructions do not have to be obeyed. In addition, the instruction must also be reasonable. This is where Hamilton may have some wriggle room. If he simply drove as fast as he could without any tactical or strategic application, he would no doubt win the race as he in fact did, but would certainly have lost any chance of achieving a fourth world championship title; a fact that would have been known to his team bosses.
Taking everything in the round, a view that tactical and strategic application is a team effort would not be unsound, but in reaching that view it must also be the case that the team outside of the car provides advisory information to the driver who then interprets and acts upon it. This margin of discretion afforded to the driver would logically cast doubt on whether an instruction to speed up would in the specific circumstances of this case be reasonable. This was certainly echoed by Hamilton’s pained utterance on receiving the instruction “Why can’t you just let us race?”
If your business has a “Lewis Hamilton” and you need some help or advice, contact FG Solicitors.
Call: 01604 871143 or E-mail: firstname.lastname@example.org
This update is for general guidance only and does not constitute definitive legal advice.
By the time you read this the turkey will have been eaten, Christmas trees returned to storage or recycled, Christmas jumpers packed away and New Year’s resolutions very likely broken. However, with confidence amongst businesses reportedly riding sky high, employers have plenty to look forward to in 2017!
Undoubtedly the big news of the year will be the unveiling of whether “Brexit means Brexit,” and employers could be forgiven for thinking there is little else on the horizon in the people management department for the year ahead. Not so – there is plenty to keep employment law and HR Practitioners busy.
2017 heralds a number of changes. One such change is the introduction of a tax free childcare scheme to replace the current system whereby employers can provide employees with childcare vouchers. The new system will allow working families to claim 20% of qualifying childcare costs for children under 5 (and for disabled children under 17) up to a maximum of £2,000 per child per year. To be able to benefit from the scheme, the general rule is that both parents in the household must earn at least £50 per week. However, if one parent is an additional rate taxpayer, the family will not be eligible.
The gender pay gap reporting regulations are scheduled to come into force in April 2017 with the aim of closing the pay gap between male and female employees. The regulations apply to large private and voluntary sector employers with more than 250 employees, and will require employers to annually publish figures showing the average hourly pay of male and female employees, pay gaps at different levels of seniority within the business and information about bonus payments over a 12 month period.
The gender pay gap report must be published on the employer’s own website and a Government sponsored website. The first reports do not have to be published until April 2018. However, employers should begin their preparations now by initially identifying if they are likely to be caught by the regime, and if so by conducting a provisional audit to establish any areas of concern. The Government will produce guidance to assist employers with compliance in due course.
In addition, the Government plans to introduce an apprenticeship levy in April 2017, which will change the way apprenticeships in England are funded. This will require all employers with an annual wage bill of more than £3 million, to invest in apprenticeships by paying 0.5% of their annual wage bill (minus an annual levy allowance of £15,000) towards the cost of apprenticeship training. The employer will then be able to access funding for apprenticeships through a new digital apprenticeship service account. The Government is also considering introducing an “Institute for Apprenticeships” tasked to ensure apprenticeships are of high quality.
Additionally, the National Living Wage rate will be reviewed in April 2017. It is anticipated this will increase from the current rate of £7.20 per hour to £7.50 per hour in line with the recommendations of the Low Pay Commission.
Overall, we predict that 2017 will be a busy year in employment law and HR matters. Employers should ensure they are fully briefed and are fully prepared to save being caught by surprise!
If you would like more information about planned changes for 2017 or would like to discuss a specific concern in relation to your business, please contact us:
Call: (01604) 871143 Email: email@example.com
This update is for general guidance only and does not constitute definitive legal advice.