After-work wine not a great idea

Some of our staff stay and have a glass of wine at the end of the day on Friday. As a rule, no one drinks heavily, but what is the company’s liability?

Question: Some of our staff stay and have a glass of wine at the end of the day on Friday. As a rule, no one drinks heavily, but what is the company’s liability? Do we need to implement a policy?

Answer: A few years ago, the case of Hunt v. Sutton Group Incentive Realty Inc. garnered considerable attention in the media. Linda Hunt sustained serious and permanent injuries in a motor vehicle accident that took place on Dec. 16, 1994. Hunt was a part-time employee of Sutton Group Incentive Realty Inc.

She was on duty and being paid during the time the party took place. She was also consuming free alcohol supplied by her employer. At about 4 p.m. another employee noticed that Hunt appeared to be intoxicated and he suggested she should phone her husband to come and drive her home. Hunt declined the offer and she left at about 6:30 p.m. with some co-workers and went to a bar.

When she left the party, a winter storm had developed. She stayed at the bar until about 8 p.m. At about 9:45 p.m., Hunt was involved in a serious motor vehicle accident in which she sustained multiple fractures and a severe permanent brain injury.

She sued both the bar owner as well as her employer. At trial, the employer was found to have been 25 per cent liable for the injuries suffered by Hunt. In essence, the court concluded her employer owed a duty to safeguard her from harm. The court imposed a duty on the Sutton Group to ensure Hunt did not consume alcohol to an extent that she would be incapable of driving home safely.

The case was later overturned on appeal and a new trial was ordered. But the appeal court did not interfere with the trial-level decision in relation to the conclusion the employer owed a special duty to Hunt as its employee.

It is important to recognize that the Hunt case flows from an employer-employee relationship. Not only was Hunt employed by the Sutton Group, she was on duty and being paid to work while at the same time being given free alcohol by her employer. The full scope of an employer’s potential liability for serving alcohol to employees has yet to be completely developed in the law.

It is clear, however, that courts will recognize an employer’s liability in circumstances where the employer provides alcohol to employees during work hours.

It is also a distinct likelihood, depending on the particular circumstances of any given case, that the courts would entertain a claim arising out of the type of alcohol consumption that you describe in your question.

Where an employer provides alcohol to employees at the workplace, even if that should be after regular work hours, there is still a strong argument that could be advanced that the employer-employee relationship characterizes the circumstances under which the alcohol is provided.

It would be prudent, therefore, to develop a policy to deal with the after-work events you describe. There are a number of measures that can be taken that could serve to eliminate or reduce the potential liability. These measures would be appropriate not only to the after-work glass of wine situation, but to company functions generally.

To begin with, consider holding an alcohol-free event. If you are serving alcohol, monitor the bar or the supply of alcohol so that persons consuming more than a nominal amount can be identified.

Designate a person to be a monitor to watch for excessive consumption. Prior to the party, communicate with all employees that drinking and driving is unacceptable and encourage everyone to drink moderately.

Ensure employees know the employer will pay for transportation home. Consider providing taxi coupons in advance of the party. Do not provide an open and unsupervised bar. Arrange for designated drivers on a pre-determined basis. As a general rule, do not serve alcohol to employees who are “on duty” at any time.

If there is an intoxicated employee, take active steps to ensure the worker does not drive home. Do whatever is necessary to ensure the employee doesn’t leave a company event and operate a motor vehicle. Call the police if necessary. Although you may feel somewhat uncomfortable in imposing these measures, the potential risks make it worthwhile.

For more information see:

Hunt v. Sutton Group Incentive Realty Inc., 2002 CarswellOnt 2604 (Ont. C.A.)

Brian Kenny is a partner with MacPherson Leslie and Tylerman LLP in Regina. He can be reached at (306) 347-8421 or bkenny@mlt.com.

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