Employer's Liquor Liability

Shelley L. Timms for The Lawyers Weekly

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In 1996, a British Columbia court decided that if an employer serves alcohol to it employees or allows employees to consume alcohol while "on the job", the employer could be successfully sued for damages that might arise as a result of the employee drinking and driving. The case involved a number of young men who were working on a trade show exhibit; their supervisor brought in some beer for dinner and the employees continued to drink the beer after dinner and while working. One of the them, Jacobsen, who was 19, had a 40 minute drive home, fell asleep, rolled his car and was rendered a paraplegic.

The trial judge held that there is a high standard of care on an employer and is required to safeguard it employees from unreasonable risks which include becoming impaired while in the course of employment. There were special factors including the young age of Jacobsen, the long workday (16 hours) and the fact that the supervisor knew that Jacobsen had a 40 minute drive home.

Following the Ontario trial decision of Hunt v. Sutton Group in 2001, most employers were nervous about hosting any employee activities that involved alcohol. This case involved a Barrie, Ontario woman who was a receptionist for Sutton Group and was working while there was a Christmas wine and cheese reception taking place at the employer's premises. Ms. Hunt consumed some alcoholic drinks during the reception, and was questioned as to whether she was able to drive home or if, in fact she needed a ride. She said no, was offered a ride later in the afternoon/evening and then joined some co-workers at a pub after the reception. She left the pub and almost two hours later was involved in a motor vehicle crash which left her seriously injured including a head injury.

The trial judge found some liability (25% to be shared with the pub) against the employer on the basis that an employer is required to provide a safe working environment for all its employees. That requirement, or "duty of care" included that the employer ensure that its employee not become intoxicated while in the course of work, and subsequently, drive home.

The judge believed that by having an open and unsupervised bar, the employer was unable to monitor the consumption of alcohol of its employees. He stated that the employer has an "overriding managerial responsibility to safeguard (the employee) from an unreasonable risk of personal injury while on duty."

In both cases, the judges took the view that the employers were in positions to take preventative steps and failed to do so.

The Hunt case was overturned for technical and procedural reasons and therefore, the discussion around the duty of care and standard of care owed to the employee by the employer is still "out there". It hasn't been accepted as good law but neither has it been overruled.

As a result of the two cases, employers need to practice risk management if alcohol is a factor in any employment activity. That may be as simple as never allowing alcohol in any employer-sponsored activity. However, things are rarely simple as activities can include client development, golf associations and professional association events.

Consequently, the employer, along with its employees, would be wise to develop an alcohol policy that is actively used and communicated amongst the employees. The policy, aside from being clear, used consistently and communicated well, should include some basic information:

• Insurance information regarding any activities involving employees.
• The type of events that the employer is willing to host.
• Training staff in the provincial servers programme.
• Zero tolerance regarding drinking and driving.
• The use of waivers and the understanding of what is required to make them effective.
• A security system in place including the use of staff who will be monitoring and tracking the consumption of alcohol by employees and/or clients.
• Using professionals to work the bar and pour the drinks and who will have the proper training, and insurance.
• Insuring that food is available at any event involving alcohol.
• Discouraging the practice of "free" alcohol or numerous tickets as consumption tends to increase.
• The provision of taxi chits or hotel room vouchers when there is alcohol at an event.

These are only some tips to assist the employer and to include in an alcohol policy. The employer needs to know that a host can be responsible for its guests, particularly if the guest is intoxicated and the duty to the guest can last until the guest is no longer intoxicated.