Christmas season means staff parties where over-consumption, drinking and driving, and sexual misconduct can be a problem. (Jenna Hauck/ The Progress)

Christmas season means staff parties where over-consumption, drinking and driving, and sexual misconduct can be a problem. (Jenna Hauck/ The Progress)

Alcohol, legal liability and the #MeToo movement at the staff Christmas party

B.C. lawyer Brian Vickers answers question about who’s to blame when bad things happen

With the office Christmas party season upon us, employees and employers should be aware of the often dangerous combination of alcohol and co-workers.

From bad behaviour to drunk driving to sexual harassment, lots can go wrong, but just who is liable when it does?

Lawyer Brian Vickers with Baker Newby LLP in Chilliwack explains some of the law surrounding whether an employee can be fired for getting drunk at a staff party as well as issues surrounding sexual harassment in light of the #MeToo movement.

So can an employee be fired for getting drunk at a staff Christmas party?

Well if the company has a policy that employees can’t drink alcohol, then probably. But if it’s permitted as it is at most company holiday parties, typically the liability issue is less about whether an employee drinks too much but is instead about what he or she does while drunk.

“You are not being fired for your intoxication, you will be fired for an event, for example you assaulted somebody,” Vickers said.

But a more complex question is whether an employer can be held liable if an employee gets drunk at a company-sponsored party and, for example, crashes while driving home?

A 2006 judgment by the Supreme Court of Canada, Childs v. Desormeaux, really limited the legal concept of social host liability. That means if an individual has a bunch of people over to their house, in most conceivable situations, the host doesn’t owe a duty of care to the a member of the public injured because of the actions of a drunk a guest.

Most staff Christmas parties, however, aren’t at homes but are at restaurants and bars. Here, the employer certainly has a moral responsibility to employees, but the commercial host liability really takes over.

“Typically what happens is the employer will make sure everyone has a safe ride, but I think it falls more on the commercial host,” Vickers said. “They are the ones booking these parties making a ton of money.”

If, in a third example, a company rents a hall and takes out a liquor licence to serve alcohol. The responsibility would likely fall more to the person or employer that got the licence.

Having said all of that, liability can be portioned out in percentages, and it’s possible a court might find everyone involved has varying degrees of exposure.

Simply put, if you get in a rearender with your car and injure someone, you will likely be held liable. If you were intoxicated, some of your liability may be attributed to the establishment that served the alcohol to you.

• RELATED: Holiday season means RCMP crackdown on impaired driving

As for sexual harassment or misconduct at a Christmas party, that is pretty simple: Companies need to have policies for that type of behaviour and policy needs to be followed.

“It’s super straightforward, they need to report it to their supervisor and they need to conduct an investigation to find out what happened,” Vickers said.

If it’s a criminal matter, it needs to be reported to police, but company policy needs to be considered.

Where lawyers such as Vickers usually get involved is when an employee is fired and that employees sues for wrongful dismissal. Then there is something called constructive dismissal. That’s where an employee might quit, but the reason they quit is, for example, persistent sexual harassment.

“If you have somebody who says, ‘I feel very uncomfortable coming to work, the boss flirted with me,’ what are their options? If they end up quitting then they can sue for a hostile work environment. The employee may have been constructively dismissed as a result of the employer’s failing to meet obligations.”

Employers really need to have a script in writing to follow in this regard.

“All employers ought to have a policy in place to address sexual harassment and bullying in the workplace generally.”

As for the #MeToo movement, Vickers said that has emboldened victims into coming forward. This has caused legal challenges for employers, because sometimes dated complaints come out of the woodwork.

• READ MORE: Reports of sex assault in B.C. spike after #MeToo goes viral: Stats Canada

“The #MeToo movement has certainly empowered individuals who have been on the wrong side of a harassment claim, say that’s 10 or 15 years old,” he said. “They are just more difficult to investigate because the evidence isn’t fresh. That doesn’t say anything about the legitimacy of the complaint.”

And at the staff Christmas party, the employer needs to take responsibility and can be held at least partly liable for what goes on.

At the end of the day, staff get-together or a regular day at work, companies should have policies in place regarding sexual harassment, and they should make sure alcohol consumption doesn’t get out of control.

• READ MORE: With holiday parties in full swing, RCMP are urging people to ‘arrive alive’


@PeeJayAitch
paul.henderson@theprogress.com

Like us on Facebook and follow us on Twitter.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

The new FVRL Express Service was inaugurated during the pandemic. The system is seen here in Maple Ridge’s branch. (Special to Black Press Media)
FVRL not currently planning for fundraising foundation

The largest library system in B.C. has a dozen small volunteer groups instead

The RCMP was called to a condo complex in Langley City in the early hours of Jan. 18, 2021, for a shooting. (Shane Mackichan/Special to the Langley Advance Times)
Our View: Too many shootings as gang war continues

We need to ask what more we could be doing to stop the endless gang wars

A lawsuit over three stormwater floods of a building over the past year has been launched against Langley City. (Langley Advance Times file)
Flooded apartment building sparks lawsuit against Langley City

A downtown landlord claims a lack of storm sewer upgrades is negligence

Maj.-Gen. Dany Fortin, vice-president of logistics and operations at the Public Health Agency of Canada, speaks at a news conference on the COVID-19 pandemic in Ottawa, on Friday, Jan. 15, 2021. THE CANADIAN PRESS/Justin Tang
B.C. records 500 new COVID-19 cases Wednesday, 14 deaths

Outbreak at Surrey Pretrial jail, two more in health care

Vancouver Canucks’ Travis Hamonic grabs Montreal Canadiens’ Josh Anderson by the face during first period NHL action in Vancouver, Wednesday, Jan. 20, 2021. THE CANADIAN PRESS/Jonathan Hayward
Horvat scores winner as Canucks dump Habs 6-5 in shootout thriller

Vancouver and Montreal clash again Thursday night

A woman writes a message on a memorial mural wall by street artist James “Smokey Devil” Hardy during a memorial to remember victims of illicit drug overdose deaths on International Overdose Awareness Day, in the Downtown Eastside of Vancouver, on Monday, August 31, 2020. THE CANADIAN PRESS/Darryl Dyck
B.C. paramedics respond to record-breaking number of overdose calls in 2020

On the front lines, COVID-19 has not only led to more calls, but increased the complexity

Eighteen-year-old Aidan Webber died in a marine accident in 2019. He was a Canadian Junior BMX champion from Nanaimo. (Submitted)
Inadequate safety training a factor in teen BMX star’s workplace death in 2019

Aidan Webber was crushed by a barge at a fish farm near Port Hardy

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

Southern resident killer whales in B.C. waters. Research shows the population’s females are more negatively influenced by vessel traffic than males. (Photo supplied by Ocean Wise Conservation Association)
Female orcas less likely to feed in presence of vessel traffic: study

Research the southern resident population raises concerns over reproduction capacity

(Black Press Media files)
Transport Canada not budging on enclosed deck rules, despite calls from BC Ferries union

There have been at least 23 cases of the U.K. variant detected in Canada, four of which are in B.C.

The Elk Valley Hospital is adapting to meet the needs of patients in the Elk Valley.
1-in-5 COVID tests coming back positive in and around Fernie, sparking concern

Dr Ron Clark of Elk Valley Hospital said one in five tests was returning positive for COVID-19

Ralliers gather in front of the Cityviews Village apartment building in Maple Ridge to protest attempts to evict low-income tenants by the building owner. (Ronan O’Doherty - The News)
Tenants protest pressure tactics by new landlord at Maple Ridge apartment building

Protest held in front of Cityviews Village on 223 St. Tuesday to rally against low-income evictions

Most Read