This best practice guidance was provided by Mazars Neville Russell.

Christmas is almost upon us. Shopping frenzy, undercooked turkey, tree lights that never work and family arguments all seem to be part of the seasonal experience – as are office parties. Parties give people the chance to enjoy themselves and build relationships with co-workers. However, they often result in managers having to look the other way and develop selective hearing when employees, slightly the worse for drink, decide to give them a few home truths.

While no one wants to be the office Scrooge and detract from the positive outcomes of such an event, organisations should be aware of their potential liabilities and might want to consider managing the event differently than they have in the past.

Harassment
Harassment is generally defined as unwanted behaviour which a person finds intimidating, upsetting, embarrassing or offensive – just the sort of behaviour that often arises as a result of consuming too much alcohol or ‘letting one’s hair down’. A pat on the bottom or a few inappropriate suggestions may appear acceptable to someone in ‘party mood’ but these are often viewed as being offensive and have both led to individuals being fired.

Until recently, liabilities arising from over enthusiastic parties were limited to claims of unfair or constructive dismissal. Following the case last year of the Chief Constable of Lincolnshire v Stubbs, employers now run the risk of being sued for sexual harassment since office parties are now viewed in the eyes of the law as an ‘extended version of the workplace’ or a ‘workbased social gathering’. There is no qualifying period or upper limit for claims of this type.

This means that, technically, people attending the office party are acting ‘in the course of their employment’ and, as a result, employers are responsible for their actions and can be sued for compensation for sexual harassment. In addition, action can also be taken against the harasser.

An employer’s ignorance of an incident is not necessarily a sufficient defence unless they can show that they have taken steps to prevent an employee acting in a discriminatory manner.

Implications
Since employees are viewed as being at work, your treatment of anyone raising a complaint, or accused of harassment, has to be the same as if this had happened during normal working hours. This means that your disciplinary or grievance procedures need to be invoked and your investigation and decision have to be fair, objective and reasonable given the circumstances.

The publication of, and adherence to, a policy addressing sexual harassment would demonstrate that a company has taken reasonable steps to prevent such a situation occurring. Obviously the publication of a policy of this type which is commonly ignored would do just the opposite!
What steps can you take to minimise the risk?
– Treat any allegations seriously and sympathetically – preferably by a manager of the same sex.
– If you are providing the alcohol it may not be reasonable to dismiss someone for drinking too much of it! For example, avoid hasty decisions and approach any situation in an objective and independent manner.
– Try to balance the amount of alcohol you provide with an awareness of your responsibilities without being perceived as frugal. You might supply drinks before and during a meal but have a cash bar thereafter.
– Remind everyone prior to the party about your expectations regarding their behaviour. You should concentrate on defining acceptable behaviour and recognise that harassment can affect both men and women. You should also encourage everyone to act to stop, rather than tolerate, mild but unwanted sexual harassment in the first instance. Harassers should be told firmly that their attentions are unwelcome and asked to stop.
– Meet with managers to ensure that they step in to diffuse any potential difficult situations before they get out of hand.
– If you are providing entertainment, ensure that it will not be viewed as offensive by any of your employees. You may want to brief your entertainers about certain topics that you will find unacceptable to ensure that they adhere to your view of reasonableness and acceptability.
– Ensure that inappropriate behaviour is clearly linked to both your informal and formal disciplinary and grievance procedure.
– If you have a harassment policy then you should ensure that everyone is aware of its contents and that it is adhered to by all.

Summary
Christmas parties can still be fun for everyone, and safe for an employer, if certain boundaries are made clear at the outset. While initially this may represent a change of culture and lead to some bad feeling, with sensitive handling the communication of any reasonable guidelines should be acceptable to most people.

For some, the highspots of any party may be heavy drinking, showing off hitherto unknown dancing talents, the photocopying of bodyparts, impromptu and spontaneous ‘party entertainment’ or airing ‘honest’ opinions to the management. For others, the aim is to have an enjoyable evening in pleasant company, without being hassled or put in an embarrassing situation. Either way, with a little forethought you should be able to minimise the former and enhance the latter without being a party pooper!

Seasons greetings from all at Mazars – and be careful out there!