Val Pitt: It’s beginning to look a lot like Christmas – with all its perils

Val Pitt is a Senior Associate, Horwich Farrelly, Glasgow.
Val Pitt is a Senior Associate, Horwich Farrelly, Glasgow.
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It’s the Most Wonderful Time of the Year! Trees are up and decorated, presents are being wrapped and Christmas playlists are ubiquitous. My personal favourite is the Dean Martin classic, Let it Snow, Let it Snow, Let it Snow. And whilst children may be dreaming of a White Christmas, employers round the country are likely to be hoping it stays mild.

If the weather does take a turn for the worse, employers should be ensuring that they have adequate risk assessments in place and have taken precautions to reduce the risks to their employees. The Supreme Court decision of Kennedy v Cordia from 2016 remains crucial to consider at this time of year.

A carer fell in icy conditions when attending the home of a service user. The Supreme Court found that Mrs Kennedy was not like an ordinary member of the public. She was instructed to attend the address, required to take the route she had and in particular, could not avoid using an untreated pathway. Her employers were found to be negligent for failing to provide her with attachments for her shoes to reduce the risk of slipping on ice. Rudolph and all of the other Reindeer, take note…

Those looking to provide the excitement of a meeting with Father Christmas may wish to insert a Santa Clause into the contract. In 2011, the Court of Appeal decided the case of Dufosse v Melbry Events Limited, concerning a visit to Santa’s Grotto in Selfridges. The grotto was operated by two employees, Santa and his Elf. Whilst in the grotto, Mrs Dufosse slipped on a cylindrical icicle ornament and sustained injuries to her leg. It was established that Santa and his Elf had a responsibility to ensure that the floor of the grotto was free from items which might be a danger to visitors. The icicle was there to be seen and ought to have been removed. The Court held that Santa and his Elf had failed in their duty of care and liability attached.

Santa is not the only person who needs to worry about the unwanted present of festive litigation. The infamous issue of the office Christmas party and liability for incidents arising therefrom can often rear its head. What happens when a drunken colleague decides that ‘All they Want for Christmas is You?’

In the case of Shelbourne v Cancer Research decided by the Court of Appeal in April 2019, Mrs Shelbourne was dancing with her supervisor at the party when a visiting scientist, who was not an employee of the Defenders but was entitled to attend the party due to his involvement with the organisation, approached her. He had been drinking alcohol for some time and attempted to lift Mrs Shelborne off the dance floor. The scientist lost his balance and dropped Mrs Shelborne, causing serious back injuries.

Mrs Shelborne sued her employers, arguing that they were vicariously liable for the negligence of the scientist. The Court considered the context of his presence in the Defender’s building and noted that he was not at work in the laboratory at the time of the accident, nor was he required by the Defenders to attend the party. The Court also noted that the Defenders’ motive for throwing the party was not to derive benefit but to respond to staff expectations. They held that the scientist’s actions at the Christmas Party were not sufficiently connected to his field of work to render the Defenders vicariously liable for his actions.

Last Christmas, a different decision was reached in the case of Bellman v Northampton Recruitment Ltd. An argument arose after the managing director of the Defenders delivered a lecture to staff during “after-party” drinks at 3am. The managing director punched an employee, who was seriously injured as a result. The Court of Appeal held that in the particular circumstances of that case, there was a sufficient connection to the managing director’s work activities for vicarious liability to attach to the company.

To sum up, when you’re Driving Home for Christmas, amidst all the festive music and cheer, it is still important to prioritise Elf and Safety…

Merry Christmas and a Happy New Year when it comes!

Val Pitt is a senior associate, Horwich Farrelly, Glasgow