You raise me up, so I can… sue my employer?
In the UK case of Shelbourne v Cancer Research UK, an employee of Cancer Research UK sustained spinal injuries at a Christmas Party in the workplace after a colleague lifted her and accidentally dropped her on the dance floor.
The colleague in question, Mr Beilik, was a scientist employed by Cambridge University but working under the supervision of Cancer Research UK in one of its laboratory at the time. The employee alleged that the employer was liable for her injuries, either because:
- of its own negligence in organising and failing to provide adequate supervision for the event; or
- it was vicariously liable for the actions of the scientist.
The Court of First Instance rejected the employee’s claims and she appealed the decision to the High Court of England and Wales, which also dismissed her appeal. This case provides a useful analysis of the extent of the duty of care expected of employers in the context of social events and the limitations on employers’ vicarious liability for conduct at social events.
The Court of First Instance
The Judge found that the employer owed the employee a duty of care and that such duty could, in certain circumstances, extend to the actions of a third party. The question arose as to whether the duty had been breached by the employer in this case and, if so, whether the breach caused the injury.
The employee argued that, given the availability of alcohol at the event, the employer should have conducted a risk assessment to encompass all eventualities stemming from the possible inappropriate behaviour of attendees and the organising staff should have received specialist training to identify and deal with trouble. She also claimed that each attendee should have signed a mandatory declaration that they would behave appropriately.
The Judge was satisfied that the employer had taken reasonable steps in the planning and operation of the party and ruled that there was no breach of the duty.
On appeal to the High Court
On appeal, the High Court of England and Wales upheld the decision of the Court of First Instance, noting that each case is fact-specific and that context is all-important. In that regard, the following facts were of particular relevance:
- The party was organised by a group of volunteer employees. The employer did not pay for the party and attendance was not mandatory nor expected.
- Alcohol was available at the event.
- No issues had arisen from the consumption of alcohol at similar events held over the previous 5 or more years.
- One of the organisers of the event conducted a risk assessment in advance of the party and identified a risk that partygoers might return to the laboratories after the consumption of alcohol. Guests were required to sign a disclaimer that they would refrain from entering the laboratories after consuming alcohol.
- The organisers hired security guards to monitor the event and, in particular, to prevent attendees from entering the laboratories.
- Evidence was given that Mr Beilik was “drunk but not very drunk” and had been allowed to bring his own alcohol (vodka) to the event. He had lifted up three other women in a similar way earlier in the evening, including an organiser of the party. However, nobody had made a complaint.
- Following the incident, the employer conducted an investigation which led to recommendations, including the sending of an email to attendees in advance of such events encouraging good behavior and the amendment of the declaration form to include that guests will act responsibly.
The Judge advocated a common-sense approach, noting that the steps proposed by the employee were unreasonable:
… the archetypal reasonable person of the early 21st century would not regard this as a socially appropriate set of requirements to impose upon the organisers of any Christmas party or other similar social gathering, regardless of the circumstances.
Courts generally take a broad approach to determining whether the relationship between the employer and wrongdoer is such that the employer can be made vicariously liable. In determining whether an employer is vicariously liable for the actions of an employee, Courts must consider:
- what functions or “field of activities” were entrusted by the employer to the wrongdoer (to be interpreted broadly); and
- whether there was sufficient connection between the position in which he/she was employed and his/her wrongful conduct, such that the employer should be held liable in accordance with social justice.
Court of First Instance
In relation to the first limb of the test, Mr Beilik’s field of activities was limited to working in Cancer Research’s laboratories. The Judge held that, whilst Mr Beilik was not an employee of Cancer Research, he was sufficiently connected to the employer’s business for the employer to be potentially held vicariously liable.
In relation to the second limb of the test, it had to be established that the assigned activities created the risk of the employee committing a tort, i.e. the conduct had to be “so closely connected to his employment that it would be fair and just to hold the employers vicariously liable“. The Judge found that Mr Beilik’s role in the laboratory was not sufficiently connected to his conduct at the party to make the employer vicariously liable; rather, his role did nothing more than provide an opportunity for this accident to occur.
On appeal to the High Court
On appeal, the employee argued that because the employer had organised the party, Mr Beilik’s “field of activities” included interacting with attendees in alcohol-infused revelry, which carried a risk of injury for which the employer should be liable.
The High Court rejected this argument, noting that this was not a description of the average work Christmas party that a reasonable person would recognise as representing reality. The Court found that the employer’s motivation in allowing its employees to organise the party was not to derive a benefit; rather, the employer was simply “responding to the expectation of its members of staff that this is what an employer does for them at Christmas“.
This case is distinguishable from the recent UK case of Bellman v Northampton Recruitment in which a company was held to be vicariously liable for an assault committed by its managing director on another employee at a party following the staff Christmas party. The Court, in that case, did not make its ruling on the basis that the employer had organised the party which led to the incident; rather, as stated by the High Court in the present case, “it was the [managing director’s] control of proceedings, at all material times, and his reaction to what he perceived to be a challenge to his authority as managing director, which made the company vicariously liable for his actions“. The High Court upheld the decision that Mr Beilik’s field of activities was not sufficiently connected with his conduct at the party to give rise to vicarious liability and the appeal was dismissed.
Advice to employers
Although a UK case, the emphasis on the ‘close-connection‘ test is relevant to Irish employers and insurers as the Courts in this jurisdiction also employ the test. Indeed, in the recent Irish decision of Hickey v McGowan, where vicarious liability was imposed on an employer for acts of sexual abuse perpetrated by an employee, the Supreme Court stated that “the close connection test must be taken to represent the law in Ireland“.
The decision in Shelbourne can be distinguished from a number of recent decisions in the UK, such as Bellman, where vicarious liability has been imposed on employers for employee wrongdoings against fellow-employees at work-organised social events. Employers must be aware that decisions in these cases turn on their own particular facts and case law runs both ways. In defending any claim of vicariously liability, an employer must be able to show that it has taken all reasonable steps to stop the action from occurring.
In the context of social events, it is prudent for employers to ensure that employees are aware of the standard of conduct expected of them at these events and that compliance with company policies is expected from all staff, including management, not only at work but also at work-related social events. Companies should ensure that these policies are kept up-to-date, shared effectively with all staff and tailored communications are developed for unusual / specific events, as necessary.