Employers can be liable for misbehaviour of errant staff

Employers have an obligation to ensure the health, safety and welfare of their employees while they are at work. As such, it would be prudent to remind employees who are about to venture to Cannes that, although they will be away, they will still be working and therefore the usual rules in relation to conduct still apply.

It would also be sensible to advise staff that while attending Mipim-related social events they should drink in moderation and remind them that they will be representing their employer. This is important because employers have been found to be liable for the acts of its errant employees if those acts take place in the course of their employment. What amounts to ‘in the course of employment’ will very much turn on the facts.

After hours

The recent case of Bellman v Northampton Recruitment Limited considered the liability of an employer in relation to an assault. The managing director arranged a staff Christmas party with most employees considering it a requirement to attend. Fortunately, the party went off without a hitch.

Employers have been found to be liable for the acts of its errant employees if those acts take place in the course of their employment

However, the party was not enough for some of the staff who, together with the managing director and some of their partners, left the party venue and went to a hotel. At the hotel further alcohol was consumed and in the early hours of the morning a discussion took place between Mr Bellman and the managing director regarding his hiring of a member of staff. The MD, not appreciating his authority being challenged and clearly under the influence of alcohol, hit Mr Bellman, leaving him with a skull fracture and a brain injury.

Was Northampton Recruitment liable for the injury caused to Mr Bellman by its MD? The court considered whether the gathering at the hotel could be seen as an extension of the employees’ workplace or whether it was wholly unrelated. Don’t forget the employees had originally been at a staff party.

In this particular case, the employer was held not to be liable for its MD’s actions because leaving the party (which was most certainly an extension of the workplace) and moving to a hotel was a spur-of-the-moment decision, as was the decision to go on and drink more. It was seen as an entirely voluntary and personal decision following the end of a work-related event.

Preventative measures

Although in this case the employer escaped liability, it is still a cautionary tale. Care should be taken at work-related events to ensure employees’ safety and to avoid employer’s liability. There are also reputational issues to consider: no one wants to read a drunken tweet bad-mouthing an employer, colleagues or clients. Therefore, before sending staff off on such events it would be sensible to remind them of the types of behaviour that are and are not acceptable and the consequences of not complying with those instructions.

No one wants to read a drunken tweet bad-mouthing an employer, colleagues or clients

Before staff are briefed about their attendance at Mipim or other such events, care must be taken to ensure that the selected few are actually happy to attend. What does an employer do if faced by someone who happens to be a key employee but who would rather not go? Can the employer insist on their attendance?

As tempting as it may be, it is ill-advised simply to insist on their attendance without understanding their reasons for not wishing to attend. To do so may land the employer with allegations of discrimination as there may be, for example, childcare issues. It is therefore critical to engage with the employee and seek to reach a resolution.

Employers should by all means encourage staff to attend marketing events but care should be taken to ensure the appropriate processes are in place so that those employees stay out of trouble. This will enable the employers to concentrate on their businesses.

Alexandra Bonner is a partner in the employment team at Goodman Derrick LLP