You better watch out ... 5 Tips to Manage Employer (Social) Host Liability During the Holiday Season (Or Any Time)
December 5, 2014
Employers host a virtual winter storm of events over the holiday season and throughout the year – office parties, retreats, client and customer receptions. They intend these to be enjoyable events, opportunities for employees to celebrate the end of a year together, thank customers, network, or all of these – often while enjoying a “cup of cheer”. Employers know an employee could overindulge and embarrass himself (or the employer) – but that’s the least of the risks:
- Mike drives to the worksite straight from home. After a long day (but still during work hours), the employer gives the employees beer – but doesn’t monitor them. Mike drinks substantial amounts; after work, he and a co-worker visit 2 bars and keep drinking. He drives home in the wee hours – and has an accident leaving him a quadriplegic. In Jacobsen v. Nike Canada Ltd., the court decided Mike’s employer was 75% responsible for his injuries and the $2.7M in monetary compensation.
- Dylan’s work team has a BBQ after hours – but with alcohol, so they have it off employer property. During some friendly roughhousing, co-worker Rueben kicks Dylan in the groin. Rueben pleads guilty to criminal assault causing bodily harm. Dylan sues his employer. In J.D. Irving Ltd. v. Hughes (PDF), the Appeal Court put it on hold while the workers’ compensation board decided whether workers compensation laws apply and bar the lawsuit. There’s been no further decision on the lawsuit, but the potential for it – or at least a workers’ compensation claim – remains.
- Trevor gets drunk at his employer’s holiday party – and makes physical threats and sexually inappropriate comments to fellow employees, managers and their spouses. The employer terminates Trevor’s employment. Trevor says he’s an alcoholic and files a human rights complaint. In Huffman v. Mitchell Plastics the human rights board acknowledged the potential for liability – but decided there wasn’t sufficient employee disclosure to trigger the employer’s duty to accommodate in the case.
This risk comes from the fact that employers owe legal duties to their employees:
Safe Workplace. Employers have a legal duty to provide a safe workplace under several laws, including occupational health and safety, workers compensation and human rights laws (and sometimes under a collective agreement). And for these purposes, the “workplace” goes beyond both the four walls of the employer’s premises and “working hours” to any context with a connection to work.
Reasonable Care. “Hosts” may owe their guests and others a legal duty to prevent injury or harm to them (and other third parties). An “employer host” may owe its employees an even higher duty than a “commercial host” (for example, bar owners) owes its guests because of the special relationship between employer and employee. If there is such a duty between an employer host and its employees (and other guests and third parties) in the circumstances, the employer will be liable if:
- it could reasonably foresee there was a risk the activity might cause that injury – for example that intoxication might result in harm (driving, harassment, assault, vandalism, walking home lightly dressed on a cold night) – to an employee, another guest, or someone else;
- it breached that duty by failing to take reasonable steps to prevent the injury; and
- the breach caused the injuries.
And liability isn’t limited to the corporate “employer”; individual employees – including co-workers or supervisors – also have obligations and can be legally responsible if they fail to fulfil them. The individuals directly responsible for the event organization are at the greatest risk.
5 TIPS TO MANAGE EMPLOYER HOST LIABILITY RISK
Employers don’t necessarily have to pull the plug on holiday (or other) events altogether – but they should recognize the risks and take great care to manage them. The employer’s degree of responsibility and risk depends on its level of awareness of, involvement in and/or control over the event. Here are five tips to help employers manage the risks:
- Party Planning 101. Planning is key to any successful event – and that applies equally to risk management. So before the party (and year round):
- Establish clear policies and procedures around party behavior – with consequences for breaking them – and clearly and directly communicate them to employees
- Don’t make attendance mandatory
- Hold parties or events at licensed commercial locations and/or hire trained servers who are better able to monitor alcohol consumption and spot those who have over-indulged
- Hold the Rum. The employer’s responsibility – and the risk – rises sharply when alcohol enters the picture, so think about the role it plays in the party:
- Completely eliminate – or at least reduce – alcohol from the event and don’t allow drinking to be the focus, and nix party games like drinking contests
- Make alcohol-free alternatives and food available
- No self-serve or “open” (read: free) bars; make it a cash bar and/or limit drinks with drink tickets
- No double-fisting: serve only one drink at a time and consider directing the bartender not to serve any “doubles”
- He Sees You … Promote employee self-responsibility and moderation to employees – but employers should still maintain some oversight and appropriate supervision.
- The Red-Nosed Employee. If the employer (or a person working at the venue) notices an employee or any guest is intoxicated, ensure that he – and others – stay safe, and deal with any fall-out later. Do the things you would do if this employee were a guest at your house, like:
- Provide him (and all attendees) with taxi chits or arrange for other transportation – like calling a friend or relative for a ride or a taxi (and actually place him in it)
- Assign a sober, responsible person to supervise him
- Take – physically – the car keys from him if he tries to drive
- If you’re not sure he has a safe way home, give him a place to sleep – a hotel if necessary
- If he still leaves: call the police
- Channel Scrooge. If there is employee misconduct then consider disciplinary consequences. No one wants to be a scrooge, but employer liability – and more importantly people’s safety – is a big deal.
Please contact your McInnes Cooper lawyer or any member of the Labour & Employment Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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