Page 8 - December 2020

A SOCIALLY DISTANCED CHRISTMAS

by Kathy Daniels, Associate Professor of HR, DLP

WHILST WE MAY need to wait nearer to employees were only at the
Christmas to understand the exact limitations placed event because they
on us this year, under normal circumstances we worked together,
regularly see HR people writing articles about the and they were only
dangers of the office party. We know that employees at the ‘after-party’
might drink too much alcohol, behaviour may because of the
deteriorate, and problems can occur.There are always office party
several people suggesting that it would be better if arranged by the
we just did not have an office party.This year those employer.The
who have concerns about Christmas parties will be liability of the
able to rest as it is very unlikely that there will be any employer has been
parties. Or maybe they still have something to be further explained in two
concerned about… other cases dealt with by the Supreme Court. In
The reason concerns are raised about the office Mohamud v Morrisons Supermarkets plc (2016), an
party is the risk of employees claiming harassment individual stopped at a garage to ask if it were
because of the behaviour of their colleagues.The possible to print some documents.The employee
office party is an extension of what happens at work who served the individual subjected him to racial
- the only reason people attend is that they are part of abuse, and then went out to the forecourt and
the workforce, and the employer is liable for what attacked him.The employer tried to argue that the
happens there. Given the restrictions of COVID-19, employee had acted so far outside of his employment
do we get a year off from this worry? No, I do not role that it was not liable. In Cox v Ministry of Justice
think we do. Inevitably, there will be some inventive (2016), the employee worked as a catering manager
approaches to the lack of the in-person party. It is in a prison. One of the prisoners working in the
likely that we will instead see parties on Zoom or kitchen dropped a bag of rice on her back as she was
Microsoft Teams. While this means we will not have bending down, causing her injury.The employer
employees facing any inappropriate physical argued that it was not liable because the prisoner was
behaviour, there could still be inappropriate verbal not an employee.
behaviour. If employees are encouraged to bring In both these cases, the arguments were
their own drinks, and to ‘party’ virtually, problems unsuccessful.These three cases show us that courts
could occur. All this means we need to refresh our tend to look at vicarious liability quite broadly, and
thoughts about vicarious liability. arguing that an individual is acting outside of his or
In the case of Bellman v Northampton Recruitment her employment role will definitely not be
Ltd (2018), the employees were at an office party and successful.
then went on to another location to continue
drinking and partying.There was a physical assault WHAT DOES THIS MEAN FOR THE SOCIALLY
on Bellman which left him permanently disabled. DISTANCED CHRISTMAS PARTY?
The employer argued that it was not liable because • Employers should set out very clear rules for
the employees had moved on from the office party, behaviour, even though it is a virtual celebration.
and therefore the link to their employment was too A message reminding employees of what is and
vague.This argument was unsuccessful as the is not acceptable conversation could be
Image: Алсу Ягудина via Unsplash

5 D L P . O R G . U K