Vicarious Liability of Alcohol and Drugs in the Workplace

Vicarious Liability of Alcohol & Drugs in the Workplace

James Gunter

 "Common law principles of vicarious liability are often important in the law surrounding alcohol & drugs in the workplace" [1]. The drug & alcohol testing advisory team at Drug Testing Kits UK, want to make all our existing & new clients across the UK, aware of the potential legal pitfalls. "The legal test for vicarious liability means that employers will be liable for wrongful acts of employees that are carried out in the course of employment & sufficiently closely connected with the employment, to justify the imposition of liability. Employers are therefore exposed to liability when there is an increased risk of inappropriate behaviour & injury from alcohol or drug consumption, e.g. at an office party" [1]

The Limits of Vicarious Liability

Companies and organisations should be aware that there are limits to this scenario. The start-off point to the correct approach to determining liability in the 2020s, derives from case law that the House of Lords set out in a 2002 liability case known as Lister v Hesley Hall. The main points from this legal determination, are:

  • If the relationship between the employee and employer is such that the employer can be legally charged as vicariously liable
  • If the employee's conduct is sufficiently closely linked to the relationship wherein vicarious liability should be legally imposed

Why Managing Drug & Alcohol Misuse at Work is So Important

Employers often make the mistake of just considering drug and alcohol issues during a normal working day. - That is to say, in the office, shop, clinic, hospital, warehouse, factory, shipping or railway yard, etc. However, Drug Testing Kits UK, which supply the latest state-of-the-art on-site drug & alcohol tests (which do not require a medic to administer), want to make it very clear, that it is essential to look above and beyond solely considering drug and alcohol issues during a normal working day. Here is a good case in point:

Bellman v Northampton Recruitment Ltd

In 2018, in the case of Bellman v Northampton Recruitment Ltd: "it was held that the employer who was drunk, was vicariously liable for an assault of a senior employee after a Christmas party. The court decided that the connection with employment must be viewed broadly, & found the company vicariously liable on the facts – the employee who committed the assault was the managing director and was acting in his managerial role when the incident happened" [1]

Of note, whether an employer can or cannot, be held accountable, is linked to specific facts. This means that in cases where work-related social events result in loss or injury, the liability of the employer is variable [1]. Here are two more cases related to vicarious liability:

Shelbourne v Cancer Research UK

In 2019, in the case, Shelbourne v Cancer Research UK:  "at a work Christmas party, a technician was physically lifted up on the dance floor by a drunk visiting scientist who lost his balance, & accidentally dropped her, leading to a spinal injury. She brought a claim of personal injury against her employer for damages of £300,000" [1].

The technician claimed that Cancer Research had not provided sufficient supervision of the party, and so to that end, it was vicariously liable for the drunk visiting scientist's behaviour. (He had in fact, lifted several women up). However, both the High Court and County Court determined that:

"the employer had not breached its duty of care and was not liable in negligence for the injury nor was it vicariously liable for the visiting scientist’s actions" [1]. In this instance, the act of drunkenness was not so closely linked with the employer, that it brought about vicarious liability. Moreover, the scientist had in effect, taken part in a ‘frolic’ of his own [1].

Mohamud v WM Morrison Supermarkets PLC

In 2016, the Supreme Court case, Mohamud v WM Morrison Supermarkets PLC, involved an employee working at a petrol station owned by the company. - He lashed out at a customer in an unprovoked attack outside the employer's petrol station office, where the customer had parked his car, causing the customer serious injuries. The former took legal action against WM Morrisons Supermarkets: "on the basis that it was vicariously liable for the assault." The Court of Appeal found that the supermarket was not vicariously liable because there was no sufficiently close connection between the attack and what the employee was employed to do [i.e., attending to customers]. The customer appealed on the basis that the question should be whether a reasonable observer would think the employee was acting in the capacity of a representative of the employer at the time of committing the wrongful act. Decision: The Supreme Court held that the employer was vicariously liable" [1].

This example is relevant to alcohol & drug cases, as it demonstrates that the vicarious liability test can be implemented in a very broad manner. The law has a wide approach as to: "whether a wrongful act like this assault was committed in the course of the employee’s employment. Case law shows that a sufficient connection can be found even where an employee has used or misused the position entrusted to him in a way which injured the victim. Employers can be made vicariously liable for an employee’s actions even when they have been drunk or taking drugs at work" [1]

The Crucial Need For Companies to Conduct Regular Drug & Alcohol Tests

Reduce Your Company's Liability

Here at Drug Testing Kits UK, we are only too well aware that not conducting regular on-site drug & alcohol testing, can heighten your company's risk and liability, especially when it relates to the safety of employees, and members of the general public, that they may come into contact with. Moreover, by using our cutting-edge highly accurate drug & alcohol testing kits, your HR department, and/or supervisors and managers who are privy to the results, will be able to determine abuse issues before they become serious problems. To that end, a drug testing policy decreases volatility, and demonstrates an intelligent effort to minify problems.

Managing Costs

Human error, lost productivity, and accidents in the workplace, are all costly issues which are  frequently linked to employees' alcohol and drug use. Here at Drug Testing Kits UK, we strongly recommend that you implement a workable drug & alcohol testing program which can  mitigate such avoidable expenses in two ways. Firstly, giving your employees regular (including unexpected on-the-spot) drug & alcohol tests, can serve as an excellent deterrent, thereby dissuading both individual use in the workplace, and the potential of an epidemic of abuse which can come about when an employee's illegal drug and alcohol use is unchecked.

Further, in the second instance, by facilitating regular alcohol & drug testing, your HR department, managers and supervisors,will be able to identify any issues earlier, thus empowering your company with the chance to provide support to any employees who warrant it. Ultimately, these two aforementioned strategies can ensure that your company/organisation, can keep the extremely high costs of drug & alcohol abuse in the workplace, to a minimum. - And this does not just relate to financial costs, it also covers loss of reputation through negative publicity (especially social media), something which even long-established companies which have been running for over a hundred years, have had to deal with. - And in some instances they have gone into bankruptcy. Indeed, such workplace costs can run into hundreds of thousands of pounds, not to mention the company/organisation facing possible criminal charges. And of course, the legal costs can be staggering, running into tens of thousands of pounds, if not more.

Revving Up Performance & Productivity

Drug Testing Kits UK serves countless industries, companies, organisations and institutions across the UK and Southern Ireland. Our long-standing experience and professional expertise in the field of medical testing, is laser-focused to reduce and negate employees' alcohol and substance abuse, along with the plethora of negative effects that it creates. - This strategy will thereby boost your revenue by ameliorating productivity and all-round job performance. Heads of departments and supervisors need to be mindful that being under the influence of alcohol and illegal drugs on the job, could inevitably lead to employees' absenteeism, turning up late, losing focus, making bad decisions, causing issues with other employees and members of the public, and endangering others that they work and deal with.

In Summary

By implementing a robust alcohol & drug testing program using Drug Testing Kits UK's state-of-the-art, (UK and Southern Ireland legally-approved), testing kits (which can be administered by a trusted member of staff), your company/organisation can ensure that it is not opening itself up to a downward trajectory of poor employee performance, the risk of accidents in the workplace, and the potential loss of your good name. If you would like to ask any questions, or seek advice on the types of drug testing kits that would be most suitable for the type and size of your business/organisation/institute, then please do not hesitate to contact out highly knowledgeable, professional Drug Testing Kits UK Customer Service Team. Remember - we help thousands of companies of all sizes, from small concerns to large multi-national corporations!




[1]. CIPD (2020). "Managing drug and alcohol misuse at work: a guide for employers."