The days are getting shorter, the nights are getting colder, and thoughts will soon be turning to the festive season and the inevitable parade of office Christmas parties. However HR departments, perhaps mindful that Halloween comes first, might have their minds on the spooky concept of vicarious liability. Might one overly merry employee’s fun come at a cost?
The High Court ruling in Shelbourne v Cancer Research UK may help businesses sleep a little easier.
Mrs Shelbourne had attended a Christmas party in 2012 at premises leased by Cancer Research UK (“CRUK”). The party was organised by volunteer employees of CRUK and held at CRUK premises as a CRUK Christmas Party. The party was ticketed and only open to CRUK staff and guests.
During the course of the party, a somewhat exuberant colleague lifted Mrs Shelbourne into the air, having already lifted two other women at the party. This was without the women’s consent, but neither of the other women reported the matter. Unfortunately, when holding Mrs Shelbourne, the colleague lost his balance. He dropped Mrs Shelbourne, who sustained a serious back injury.
Mrs Shelbourne brought a claim of negligence against CRUK, arguing that the organisation should have considered that the presence of alcohol could lead to inappropriate behaviour, and put preventative measures in place.
CRUK noted that an employee had undertaken a risk assessment, focused mainly on preventing unauthorised access to the laboratory, as well as risks arising from games, surfaces and potential collisions. The assessment did consider alcohol, but again, primarily in respect of laboratory access. Indeed two additional security staff were hired to prevent unauthorised laboratory access.
Mrs Shelbourne’s case failed in the County Court and ultimately failed in the High Court too. She was unable to persuade either court of a sufficient connection between her colleague’s work activities and his behaviour at the Christmas party. The High Court noted that unlike in other cases where vicarious liability was imposed, CRUK did not retain overall control of this voluntary, staff-led event. CRUK’s motivation for allowing the event was said to be “…responding to the expectation of its staff that this is what their employer does for them at Christmas”, rather than deriving a benefit for its operations.
Mrs Shelbourne’s colleague was no longer furthering his activities at CRUK when he started lifting his colleagues without permission, and CRUK’s duty did not extend to mitigating against this possibility.
Employers can therefore take comfort that they will not automatically be liable for all and any potential shenanigans at their Christmas parties. They should conduct a risk assessment, but they do not need to predict absolutely everything. In most situations, it will be enough to consider foreseeable hazards, informed by past occurrences at similar events.