EMPLOYMENT LAW MAY 2019
Employment law SOS
This month, our legal expert explores what happens when an
employee is pulled over for drink-driving after a work event,
appropriately dealing with a protest outside the factory gates
and ownership of contacts on social media
BY HELEN HUGHES, LEGAL DIRECTOR, SHAKESPEARE MARTINEAU www.shma.co.uk
To celebrate securing a
major contract, we treated
our staff to a small party on a
Friday afternoon. We provided
a couple of bottles of wine, on
the understanding that nobody
would go overboard, especially
if they were driving home
afterwards. Unfortunately,
though, one member of staff
didn’t heed this warning and
subsequently got pulled over
by the police. He’s pointing
the finger of blame at us, but
we can point to everyone
who made it home safely and
without incident. Who’s to
blame, and what could the
consequences be?
Regardless of the workplace
setting, what’s clear in this case
is that the member of staff was
ultimately responsible for the
alcohol he consumed, and his
subsequent actions. As such,
any criminal liability will fall
squarely on his shoulders.
However, it’s also important
to be aware of the strict stance
that the courts have previously
adopted around alcohol provided
during out-of-hours social
events. If the drink-driving
resulted in any damage to people
or property, for example, due
to a collision, the courts may
also consider whether you, as
his employer, are vicariously
liable for the behaviour of your
employee. If death had been
caused by any such collision,
then the directors of the
company could potentially
face charges of corporate
manslaughter.
Considering that the
punishment faced by the
individual in this case is
most likely to be a driving
disqualification, you should
next think about whether this
will impact the person’s ability
to do their job. For example, a
salesman who spends a large
proportion of their working
day on the road may be able to
make alternative arrangements
to avoid losing their job, such
as paying for a driver or family
member to drive them to and
from meetings. Assessing this
will help you decide whether
disciplinary action, including
dismissal, is appropriate.
A careful evaluation of
whether such contingency plans
are practical, as well as taking
steps to follow a fair process,
and investigating all factors fully,
should form a key part of the
decision around whether the
they drank, or was a member of
the management team actively
topping up their glasses?
While bottles of wine were
provided on the ‘understanding
that nobody would go
overboard’, was this clearly set
out in a written policy, governing
work social events and the
consumption of alcohol? Prior
to the event, it would have
been advisable to send a memo
to all staff, reminding them of
expected standards of behaviour.
As part of your decision-making
process, you should also review
how any employees in similar
circumstances have been treated
in the past.
Additionally, there may be a
separate issue around whether
the employee’s actions risked
bringing the organisation into
disrepute. Checking to see
whether your disciplinary policy
covers this and reviewing past
cases, can help you to determine
whether pursuing such an
allegation is truly in the best
interests of the business.
O ur factory makes sausages
and meat products for
leading supermarkets. We
have recently been targeted
by an animal welfare group,
who have picketed the factory
gates and threatened our
staff as they enter and exit
the building. To begin with,
it was purely verbal insults,
which could be laughed off
or ignored. However, this has
since escalated: one of our
shopfloor staff was recently
pelted with stones as he
arrived at work. This has
understandably upset the
entire workforce, and many
have been reluctant to come
into work as they fear for their
safety. What can we do?
loss of a driving licence justifies
dismissal. If there has been no
loss of licence, you will still need
to consider whether disciplinary
action generally is reasonable in
this particular circumstance.
It is also important to
give sufficient thought to any
mitigating circumstances
that the member of staff may
claim in his defence. For
example, he may argue that
you encouraged him to drink
by providing alcohol, and that
this occurred outside of normal
working hours. A number of
details are important here.
Were employees responsible
for helping themselves to the
wine, and managing the amount
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