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The big Christmas party has become somewhat of a tradition for many companies, particularly in office and corporate structures.  It’s often seen, perhaps quite rightly, as a chance to let one’s hair down and relax or celebrate with a drink or two; but the big question for many managers can be – “what happens if one partygoer injures or wrongs another partygoer at the office party?  Will the company be held responsible?

 

The Court considered these issues in the combined cases of Weddall v Barchester Healthcare Ltd; Wallbank v Wallbank Fox Designs Ltd [2012] EWCA Civ 25 CA

 

The Court confirmed that whether the employer will be held liable for an act of an employee will depend on the closeness of the violent act to the employee’s employment – was it done in the course of their employment?

 

If an employee wrongs a fellow employee, or even another guest, where there is a sufficient connection between the act and the wrongdoer’s employment, there is a risk the employer will be held responsible.  The question therefore is what constitutes a “significant connection between the act and the wrongdoer’s employment”?

 

Generally the courts seem to take a case-by-case approach.  In the case of Weddall v Barchester Mr Weddall telephoned another employee, Mr Marsh, at night to ask him to come into work as another employee had called in sick.  Mr Marsh, who has already on bad terms with Mr Weddall, reacted badly to the call and, being intoxicated already, travelled to the care home and violently attacked Mr Weddall.  The Court held that Mr Marsh’s actions were not part of his employment and so the employer was not liable.

 

This case needs to be contracted with Wallbank v Wallbank Fox Designs in which an employee assaulted Mr Wallbank whilst at work in response to a reasonable instruction.  The Court held that the risk of friction is always present in an employment relationship, particularly in a small factory, and that a violent act may be incidental to employment rather than unrelated to it.  As the violent act occurred during work, at the factory, the Court held the company responsible for the violent employee’s act.

 

On the face of it the only real differences appear to be that the second incident, which the company was held responsible for, happened during work and the dispute arose over a work issue whereas in the first case the violent employee was no longer at work and was not undertaking his work duties when he committed the act.

 

The courts also look at the closeness of the connection between the wrongful act and the employment.  In the case of Lister and others v Hesley Hall [2001] IRLR 472 HL a number of children were abused by the school’s caretaker.  Although his actions were not authorised or known of by his employer, and many committed outside of work hours, the Court held the opportunity to commit the acts arose out of the employment relationship and he had a position of responsibility and authority with the children.  Ultimately the school were held responsible.

 

 

So what should an employer do?

 

It would be sensible to have in place a clear policy for employees’ conduct towards one another, including the disciplinary consequences for breach, and ensuring all employees read and sign, perhaps in the form of an office handbook.

 

Employers should be vigilant in stamping out any friction or conflict between employees before it develops into something more serious, which could include ensuring there is adequate supervision at all times including potentially monitoring of internal communications and CCTV.  An employer who fails to heed or act upon a complaint made by one employee about another’s conduct is setting themselves up for disaster in the event something more serious transpires between the two in due course as the courts will always look at whether the employer should or could have seen an incident coming based on what had happened in the past.  Violent or abusive employees that pose a threat to others should be disciplined appropriately so that an example is set.

 

However, when it comes to Christmas parties and so forth, where alcohol is consumed and people are in high spirits sometimes a seemingly harmonious workforce can lead to trouble – how does an employer guard against that?  Although employers may not be held liable for the actions of employees at out-of-work events, if not connected with their work, it could be still argued they should be responsible for incidents if they for example encouraged heavy drinking or other unsafe activity.

 

The best course for an employer could be to set out “ground rules” for the party including warnings against misconduct or heavy alcohol consumption.  Employees may leave the party and continue on with the night out in town for example but it is likely that anything that takes place outside of the employer’s presence or knowledge will be seen as not connected with their employment.  If an employer observes untoward conduct at the party then despite it being outside of work he or she would be best placed to intervene there and then, provided safe to do so, to avoid the risk and anything the employer becomes aware of after the party should be dealt with swiftly to prevent a reoccurrence.

 

By James Winterbottom, Solicitor

 

If you would like to know more, or let us have your thoughts, please contact us on 0161 399 1231 or info@astonknightsolicitors.co.uk

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