With Christmas looming, employers need to think twice about taking staff out for a drink, especially if they then have to drive home. David Faithful says bosses could be held responsible in the event of a car accident.
The prosecution by French police of a couple who allegedly plied a dinner guest with alcohol in the knowledge he was driving home has sent alarm bells ringing among UK employers and their insurers.In the French case, the intoxicated driver became confused at a motorway junction and drove the wrong way along the motorway resulting in a head-on collision, killing himself and four other people. The couple were charged with 'failing to prevent a crime or lesser offence involving bodily injury' – a charge similar to the offence of aiding and abetting in the UK.In the world of the work-related driver, it is not difficult to imagine how an employee may come into contact with alcohol as part of their employment and then be expected to drive afterwards. For example, a salesman who is expected to socialise with clients, a team invited to celebrate a successful deal, networking at trade fairs or the traditional Christmas party.Imagine a situation in which an employee who drives a company car is invited by their employer to attend a corporate function at a remote hotel where the only method of getting there is by car. There are pre-dinner drinks, wine on the table, a toast and a bar and disco. Who, in this situation, is responsible for ensuring that employees with cars are not driving home while over the drink drive limit, the employer or the driver?There can be no doubt that the employee has a duty under health and safety legislation to ensure his own safety by not drinking to excess and will face a drink driving charge if caught, or at worst a charge of causing death by dangerous driving if an accident occurs. Bearing in mind that alcohol is now an aggravating factor, conviction could result in a five to ten year imprisonment.But where does this leave the employer? As highlighted in the French case, they could be prosecuted for aiding and abetting the offence, for breaching health and safety legislation, or corporate manslaughter in the event that an individual can be identified as having responsibility for the employee's condition.Say, for example, the managing director is a hard drinker and this results in a drinking culture among employees. In such circumstances, the employee may feel obliged to drink to excess by a direct order from someone in authority or through peer pressure – either could provide the necessary ingredient to a successful corporate manslaughter prosecution.Once corporate killing becomes a specific offence, the need to identify the responsible individual will be removed and consequently it will be far easier to secure a conviction than is currently the case for corporate manslaughter.
Risk managementFurther, in the event that the employee was injured by driving into a tree in the hotel grounds on the way out, there is the arguable risk that causation could be established to launch an employers' liability claim against his employer for placing him in a position where there was a foreseeable risk of injury. In reality, what in employment terms is the difference between driving a vehicle while drunk, or operating a drill or a lathe in a factory in the same condition?For those advising fleets or employers on effective risk management of occupational drivers, alcohol use has been identified as creating the greatest risk to employers of some form of prosecution or claim arising from an accident.It is for this reason that a number of employers have introduced an alcohol policy to cover not only general alcohol use in the workplace, but also the sort of out-of-office situations employees may find themselves in. Provided there is an audit trail showing that the alcohol policy has been implemented, rather than paid lip-service to, employers should have nothing to fear in the event of an accident.With the international development of corporate responsibility, the French case comes as no surprise. In the UK where there is a fully-developed health and safety culture as well as a blame culture, it can only be a matter of time before a similar case is reported here. But will it be the motorist's or employer's liability insurer who will be covering the damages?'David Faithful is a partner at law firm Clarke Willmott
Work-related road safetyFor some time now the employment tribunal has accepted that social events, although often occurring outside the business premises and office hours, are still within the control of the employer. In these circumstances the employer has been held to owe a wide-ranging duty to their employees to protect their welfare and health and safety, such as protection from sexual harassment.Since the introduction of the Health and Safety at Work Act  a culture of corporate responsibility has developed, first with an increase in health and safety legislation, and latterly through prosecutions for corporate manslaughter arising from disasters, such as the Hatfield rail crash. The industry has also been waiting for some time the introduction of the new offence of 'corporate killing', which seems likely to arrive in 2005.In 2002, the Health and Safety Executive published guidelines for the management of work-related road safety. For the first time, employers of drivers of occupational vehicles were given specific guidelines aimed at developing a risk management approach to driving, one important aspect of which is the monitoring of the health and fitness of drivers. These guidelines, in the hands of the police, provide a blueprint for any investigation into the employer's role in either preventing or contributing to an accident.