An employer’s liability for alcohol in the workplace

With Christmas just around the corner, this article may be appropriate to employers who host Friday afternoon office parties

Your employees relax in the office pub on a Friday afternoon. They get a bit tipsy and one employee has a car accident on the way home. Are you, as the employer, liable for damage caused to a third party by an intoxicated employee?

In South Africa, employers can be held responsible for damage caused to others by an employee acting within the course and scope of their employment. This is called vicarious liability. Our courts have not yet pronounced on whether an employer is liable for damage caused by an employee who has consumed alcohol above the prescribed legal limit, but who is not acting in the course and scope of his employment. According to the AA of SA:

In South Africa, the legal limit is a breath alcohol content of 0.24mg per 1,000ml, or a blood alcohol limit of 0.05g per 100ml, a fact that should be burnt into every motorist’s memory. This begs the question: ‘What does this mean for me, and what specifically constitutes being over the limit?”

The rule of thumb is a maximum of one unit of alcohol per hour, which constitutes 10ml of pure alcohol, based on an adult weighing 68kg. Our bodies can process only one unit of alcohol each hour. However, it is important to be aware that if you weigh less than 68kg your body will need more time to process the same amount of alcohol.

In Canada, courts have held employers liable for harm sustained by employees involved in accidents following work functions from which they drove home over the legal limit. In Jacobson v Nike Canada, the court held that if the employer had at least attempted to prevent its employee from driving home by confiscating his keys or calling a taxi for him it would have been absolved of a considerable amount of its liability.

Although this specific issue has not yet been dealt with by South African courts, it is likely that when faced with such a matter a South African court would probably decide the matter in much the same way as the Canadian courts did.

The rationale behind the decision is that an employer hosting a function owes a duty to its employees. After a function, an employer should, at least, confiscate the keys of drunken employees and offer them a ride home