The Christmas party season is upon us again.
But while it is known as a time of goodwill to all men, the Christmas period can cause massive headaches for employers.
In particular, the office party, where the mulled wine is flowing freely, can lead to a number of employment-related challenges as alcohol-fuelled employees have a tendency to say and do things that they wouldn’t do normally.
The problem is that the law of vicarious liability means that employers can be liable for workers’ actions that occur "in the course of employment". Case law tells us that the courts have chosen to define this situation very widely, which often means that employers can find themselves liable for harassment and discrimination because of comments or actions taken outside of working hours and outside of the normal working environment.
Harassment
By way of an analogy, in Chief Constable of Lincolnshire Police v Stubbs and ors, a male police officer made inappropriate sexual remarks to a female colleague on more than one occasion at social events after working hours.
His employer argued that these remarks were not made "in the course of employment". But the Employment Appeals Tribunal found that, as both incidents occurred during social gatherings that involved colleagues either immediately after work or at an organised leaving party, the incidents occurrred "in the course of employment."
By applying the same rationale, it is easy to see how a Christmas party that is organised and paid for by an employer is likely to be seen as an extension of employment. This means that they could, therefore, be liable for the actions of the staff who attend it.
But employers could also find themselves liable for acts of harrassment carried out by third parties at Christmas dos. For example, if an employee complains to their manager that a barman (who is employed by the venue where the Christmas party is being held) has made racist comments to them, but the manager fails to take steps to prevent the racial harassment from occurring again, the employer concerned could find itself liable for third party harrassment under the provisions of the Equality Act 2010.
Before such liability was applied, however, the employer would need to have failed to take reasonable steps to prevent the situation, having received at least two complaints from the staff member.
But the need to take such complaints seriously is something to be wary of nevertheless. Although the current government plans to remove liability for third party harassment from the Equality Act, until it actually does so, employers do need to be aware of this provision.
One way to minimise risk, meanwhile, is to set out the standards of behaviour expected of staff in a company-wide policy. Such policies should specify that the same importance is attached to ensuring a harassment- and discrimination-free environment at the Christmas party as within the normal working environment.
Religious discrimination
Some employers worry that simply by having a Christmas do, they run the risk of a religious discrimination claim based on the premise that Christmas is an ostensibly Christian celebration. But provided that they behave sensibly and are considerate to the views of others when organising the party, the risk of such a claim is extremely low.
Most work Christmas parties are really an end of year celebration and have very little to do with Christian symbolism anyway.
When planning a Christmas celebration, employers should ensure that non-Christian employees are not disadvantaged, however. They should consider the timing and catering offered at the event in order to identify areas in which staff with non-Christian beliefs could be disadvantaged and consider arrangements to help overcome any potential issues.
For example, Jewish staff may not wish to attend a party on a Friday night. Menus should also be reviewed to ensure that a variety of food is made available that meets employees’ religious or cultural requirements. Options here range from providing a vegatarian alternative, serving halal meat, providing kosher food or ensuring that adequate non-alcoholic drinks are available.
The important point for employers is that they should know their workforce and consider consulting with employees in order to understand the requirements of their religion or belief. Such activity could be undertaken as part of the induction process, where, at workers’ discretion, they could be asked to provide information that would assist in the planning of social events among other things.
Promises, promises
But it’s not just harrassment and discrimination that employers must be mindful of. Loose talk at Christmas parties can also be costly. In Judge v Crown Leisure, an employee raised a constructive dismissal case against his former employer for failing to grant him a pay rise that, he claimed, had been promised him by his manager at a Christmas party.
On this occasion, the tribunal decided that the words of the manager were too vague to amount to a guarantee. But the case should serve to dissuade managers from stumbling into conversations about pay and career progression at Christmas dos.
Finally, some tips to help employers avoid Christmas party pitfalls:
- Have sensible policies in place that are publicised and enforced all year round
- Ensure that disciplinary policies entitle employers to take action in respect of misconduct that takes place outside of working hours
- Give staff a Christmas reminder of the pertinent issues, particularly regarding alcohol and harassment;
- Consult with workers on how they wish to celebrate
- Ensure that there is a variety of food and drink available at the Christmas party itself
- Consider holding work events at other times of year, but make sure that they are unrelated to religious festivals
- Ensure that that no one feels offended or left out by the celebrations and that non-attendance at Christmas parties will not be frowned upon
- Consider arrangements from a health and safety perspective so, for example, plan how staff can get home, particularly in bad weather conditions.
Eileen MacMahon is a solicitor in the employment team of UK law firm, Dundas & Wilson.
One Response
Burn down the disco, hang the blessed lawyer
The best way to have a good Christmas party is to ban lawyers from attending imho. If you invite them, you may be better off having a cup of tea in an isolation chamber, lest you offend someone else.