Office holiday parties can be a risky business – especially for employers.
Given the courts' increased willingness to place a legal onus on employers to ensure the safety of their employees, mixing an open bar with a workplace event can be a recipe for disaster.
Here are some of the potential risks that employers face with holiday parties and other after-work events:
Social host liability
Employers can be sued for seven-figure amounts if they provide alcohol to staff who are injured if they drink and then drive. In fact, employers may owe their employees an even greater duty than a restaurant or bar would owe to a guest, because the law requires an employer to take reasonable care for the safety of its employees.
This is exactly the conclusion that a British Columbia trial court drew in a 1996 case against Nike Canada Ltd., after one of its employees was given alcohol at an off-site work event and then drove his car into a ditch later that night, leaving him permanently injured. Nike was required to pay $2-million to the employee because it failed to take positive steps to prevent him from driving after supplying him with beer.
However, drinking and driving is not the only cause of employer liability where alcohol is provided at a workplace event. More recently, a lawyer in British Columbia sued her employer and another employee when she was seriously injured after being knocked to the ground while dancing with colleagues at a nightclub following a firm-sponsored dinner.
If the courts are prepared to hold employers responsible for any injury that occurs after alcohol is provided or even just made available, then the scope of an employer's liability could be dramatically widened.
What can employers do to safeguard themselves from seemingly endless liability? Alcohol consumption should be strictly monitored, whether through drink tickets, hired bartenders or event security guards. Hotel rooms or at least taxis should be provided. Designated non-drinking employees should monitor the party to ensure that these instructions are carried out, and a written reminder warning employees against drinking and driving should be distributed the day of the event.
Sexual harassment
Holiday parties and any related events are still considered workplace events by courts, meaning that employees are bound by the same rules and policies that apply to the workplace.
In another British Columbia case involving the holiday party of Marriott Hotels of Canada Ltd., a company director was fired after he followed a junior employee into a bathroom at the hotel, allegedly fondled her, and later called her room, interested in sex. This prompted a B.C. Supreme Court judge to uphold the director's termination, finding that he sexually harassed the subordinate and that an after-party, even if not organized by the employer, is still a workplace event.
Since employers can be sued if they do not properly investigate allegations of harassment, or if they do not take steps to prevent it, employees should be warned that all of the normal rules and laws regarding harassment and workplace violence continue to apply to holiday parties or any company-sponsored event. Managers, in particular, should receive training on those policies and be responsible for enforcing them at company parties.
Privacy
Although there is no "right" to privacy at corporate social events, pictures and videos taken of employees without their consent, if embarrassing or awkward, can also lead to trouble.
This is especially so after an Ontario appeal court opened the door to "invasion of privacy" lawsuits in a judgment late last year. If an image is taken and shared, online or on social media, and is seen as a deliberate attempt to intrude on that employee's personal affairs, the photographer or anyone who distributes the images could be sued, including an employer who hosted or even sponsored the event.
For this reason, employers should consider posting warnings or distribute an e-mail confirming that pictures of the event may be taken and later shared, which may act as a form of implied consent.
Often, simple common sense takes a back seat when people let down their hair. This is why proper planning and precautions are the gold standard for work parties or other after-work events.
Daniel A. Lublin is a partner at Whitten & Lublin, employment and labour lawyers, and he is the author of the Law of Contractors. E-mail:Dan@canadaemploymentlawyer.com