Written by
Ian Holloway

Published
04 Dec 2015

Can I mention the C word?

04 Dec 2015 • by Ian Holloway

Tis the season to cause havoc

To be honest, the annual event is an employment law nightmare for HR - just thinking of the potential implications of the ill-judged use of mistletoe and the photocopier is enough to put any employer off holding a party in the first place!

Importantly, however, I want to highlight the employer's duty of care to their employees under the Health and Safety at Work Act 1974 (and Northern Ireland equivalent). The Act does place a general duty of care on employees to take reasonable care of their own health and safety whilst at work, plus any other person that may be impacted by their acts.  Similarly, and crucially, the employer has a duty of care under the same Act to employees in the course of their employment - therefore, this duty of care can extend outside of the workplace, especially relevant in organised workplace functions such as the Christmas party. 

My area of focus is the significant issue faced by employers at parties where alcohol is provided to employees (or workers to be more accurate).  This is where the employer has to be really careful.  In the first instance, it is worth pointing out the drink-driving limits that apply in the UK.  Using powers in the Scotland Act 2012, levels were amended in Scotland from 05 December 2014 to bring them more into line with other European countries:

Level of alcohol

•    Breath - 35 microgrammes per 100 millilitres of breath (22 in Scotland)
•    Blood - 80 milligrammes per 100 millilitres of blood (50 in Scotland)
•    Urine - 107 milligrammes per 100 milligrammes of urine (67 in Scotland)

However, as everyone should know, it is impossible to say the amount of alcohol that a person would need to drink to push them over the limit, as this varies from one person to another depending on factors such as:

•    weight
•    gender
•    metabolism
•    the drink itself
•    stress levels at the time of drinking, and
•    age

Right at the start, therefore, employers have a dilemma in that tolerances are different depending where you are in the UK and the make-up of the Christmas party. So, recognising that the duty of care to workers extends beyond the workplace, what should a responsible employer look at when organising a party where there is the possibility that excessive alcohol could be consumed? 

Things to consider

•    communicating the organisation's alcohol policy before the party
•    reminding employees to organise their journey home, taking into account things like last train times or, perhaps, car-sharing with someone who is not drinking alcohol
•    making available transport to get workers home - mini buses, taxis etc.  This may be as simple as ensuring that each worker is provided with a list of local taxi firms 
•    a 'free bar' may be considered an encouragement to excessive alcohol consumption.  Possibly, an employer may want to limit the supply of alcoholic drinks by ensuring that there are low or non-alcoholic alternatives (as well as soft drinks and water) 

In addition, an employer also needs to look to be aware of potential claims of unfair treatment for workers whose religion forbids alcohol.  The provision of plenty of non-alcoholic alternative drinks should avoid this.    

An employer needs to be prepared well in advance of the party itself and mitigate the risks of their workers posing risks to themselves and others. Such preparation, specifically alcohol in this article, will demonstrate that the employer recognises their duty of care and reduce the employer's own risk of liability afterwards.

Note that this duty of care applies to any function that the employer may facilitate and is not limited to Christmas.