Corporate away days: what is your duty of care?

Corporate away days are a core part of the annual calendar in modern office life. There are a huge array of options available, from culinary experiences to extreme watersports. For the most part, such events reinforce team spirit and are considered time well spent.

Except when it isn't. Things can and do go wrong, especially when the competitive office culture is transported to a potentially risky external event. Kathy, for example, was really excited about racing her colleagues in go karts; she was determined to show them that she wasn't always the mild-mannered person they knew from the office so she went into the hairpin at full throttle, and ended the day with a broken ankle.

This is a fairly typical scenario, but the ramifications of incidents like this can extend far beyond the physical injuries an employee suffers, especially following more serious incidents. Imagine, for example, a scenario in which an employee - Stephen - cajoles co-worker - Ted - into taking a bungee jump during a corporate away day. If the jump goes tragically awry and Ted is killed, how will Stephen cope? Would the psychological impact on Stephen be so severe that he may be unable to work again?

In this scenario, an event intended to promote camaraderie could end with the company losing two highly valued professionals.

Case law is murky

This raises the question: does an employer have a duty of care for employees voluntarily taking part in an activity at a corporate away day? UK case law on this question is limited and not entirely clear, perhaps because most cases are settled outside of court.

There are two key issues. The first is whether a person attending a corporate away day outside the office is actually at work, in which case the Health and Safety at Work Act would apply. Reynold v Strutt & Parker LLP [2011] addressed this directly. The defendants had organised an away day which included a bicycle race. During the race, the claimant and a colleague collided; the claimant was not wearing a helmet and sustained serious brain injuries.

The judge concluded that the defendant's employees were not in the course of their employment when taking advantage of the defendant's hospitality. In his judgment, he commented that it was "impossible to say that having a fun day out is an ordinary incident of normal employment. On the contrary, by its very nature it is an extraordinary incident". Some commentators, however, assert that the judge's reasoning on this particular point is subject to interpretation and that judges in other cases could arrive at a different conclusion.

But even if employees are deemed to be off work, what responsibility does the employer have in ensuring an activity is safe and the participants are capable of taking part? If it's a DIY event that a company organises on its own, the employer clearly is responsible for the safety of the employees in the same way someone hosting a party is liable if their negligence results in an injury to a guest.

Many corporate away days, however, are organised through an event management company. In that case, the event management company bears primary responsibility for the safety and wellbeing of the attendees. Nonetheless, an employer could be held at least partially responsible for an incident if it was determined that it did not adequately assess the risks and take appropriate precautions.

In the case noted previously, while the judge did not consider that the event took place during the course of employment, he could not ignore the employee-employer relationship. In his ruling, he found that a duty of care still arose, stating "the duty on the defendant in this case was about to take such reasonable care as any reasonable employer would take (a) to ensure that employees were reasonably safe in engaging in the activities which the employer had arranged and (b) in the making and management of the arrangements that were being organised".

In a nutshell, the judge in this case - which is so far the only one in the UK to specifically involve an injury at an away day - found that while employees participating in the event were not at work at the time, their employer was still required to ensure the activities "were reasonably safe". Furthermore, some recent cases have sought to extend an employer's duty of care obligations based on the principle of vicarious liability. Although none of these cases involved an away day, any expansion of what constitutes duty of care could logically encompass an employer-sanctioned event, even one that is voluntary.

Offer guidance

These legal uncertainties are unlikely to diminish the popularity of corporate away days. This means corporate risk managers should provide clear and common sense guidance on the steps a team should take when organising an away day, especially if potentially hazardous activities are part of the programme. These could include:

• Review the suitability of an activity for participating employees beforehand;
• Give employees a clear description of what the activity entails, including possible risks;
• Stress that all activities are completely voluntary and clearly communicate that no one should feel compelled to do something they're not comfortable with;
• Require that a risk assessment be conducted;
• Check the event organiser's safety measures and training programmes;
• Ensure that the event organiser has sufficient liability insurance;
• Prohibit or restrict alcohol use when the activity requires a clear head.

Robert Beesley is a senior casualty underwriter based in London with responsibility for UK and international global programmes and large national accounts. Contact him at robert.beesley@xlcatlin.com

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