The holiday season is upon us. Fast on its heels is its merry and often less sober cousin, the holiday office party, proof positive that most employers like to have fun once in a while too. But employers need to remember an important fact about the “holiday party.” Employers have a higher duty of care than other social hosts. In fact, employers have a legal obligation to take all reasonable steps to not only safeguard employees from harm during the holiday party but after they leave as well.
The not-so-merry risks
The law on what is known as “social host liability” simply refers to the obligations which arise from hosting others. And this applies to employers who choose to host a holiday party. Employers need to remember that when they decide to host a holiday party where alcohol is served, they may be taking on significant liability, not only for the actions of its employees, but also the guests of its employees while they attend the party — and even after they leave. Courts have held social hosts fully liable for the actions of their guests, since the host will “get the ball rolling” with the first drink.
Consider the following example: An employer is hosting an in-office staff holiday party. No one is in charge of monitoring alcohol consumption. An employee has a number of alcoholic drinks at the party. The employer becomes concerned about the state of the employee’s inebriation and offers to call her husband to pick her up, but she declines. She then leaves the party and goes to a local pub and continues drinking. She eventually drives home and is involved in a serious car accident. In a decision which had these very facts, a court found that the employer had not discharged its duty of care to safeguard the employee from harm. The employer and the pub were each held 25 per cent responsible for the employee’s damages.
The precise nature of the duty to employees is often difficult to assess. An employer has an obligation to monitor the intoxication levels of its guests, despite the fact that it is not operating a bar or tavern. It is not sufficient to simply ask an intoxicated person if they need a taxi to get home. They may not be in a position to make an appropriate judgment. The duty may extend further — that is, to ensure the employee leaves her car keys behind and takes a taxi. It may even involve calling the police if it’s known an employee is drinking and driving.
In addition, social host liability does not only extend to drinking and driving. Employers must also ensure that at the office event their employees are free from violence, harassment and discrimination. As we know, alcohol consumption tends to alter people’s perceptions and lessen inhibitions. The duty on employers to maintain a harassment and violence-free environment exists in the workplace and at work-sanctioned events.
In short, an employer needs to take all reasonable and prudent steps to ensure that the party is both fun and respectful.
Best practices and safety tips
The key is to enhance morale through the use of a holiday party but to make sure it’s done safely while minimizing exposure to liability.
Here are a few tips to keep employers walking a straight line legally:
• prior to the event, remind employees that it is a work function and that they are subject to workplace rules and codes of conduct
• advise employees, in advance, that they have a personal responsibility to not drink and drive
• hold your holiday party at a commercial establishment outside of the workplace with licensed servers
• supervise employees to ensure they consume alcohol responsibly, and consider providing employees with drink tickets, rather than having an “open” bar
• ensure non-alcoholic beverages and food are readily available
• arrange for designated drivers or provide employees with taxi chits or the option of staying in a nearby hotel
• take prompt action with respect to any inappropriate behavior by employees
• stop serving alcohol an hour or more before the party ends
• ensure the appropriate liability insurance is in place.
Have a happy, safe and “non-liable” holiday season.Lorenzo Lisi practices employment and labour law and Jennifer Heath practices commercial litigation with a focus on employment and labour law, both for Aird & Berlis LLP in Toronto. Aird & Berlis can be reached at (416) 863-1500 or by visiting www.airdberlis.com.