The festive season is upon us, or as employment lawyers like to think of it, the litigation season. It is time to send HR’s annual email explaining that there will be no office party this year/there will be a cheaper one than usual and that no-one must smoke, drink too much, tell any jokes, or behave offensively.
Behaving offensively is a particularly difficult thing to set parameters for. I once sent out a Christmas card saying "Peace on Earth, Goodwill to all men, if that’s not how you feel, call us in the New Year". Three people were so offended they instantly left our newsletter list – but a lot of people called. I was joking, but managed to offend. I was probably insensitive. We won’t be sending that greeting out this year.
When I first started work, the office Christmas party was really closer to a festival of misrule. Feisty ladies in finance used to seduce poor office boys and target the boss for their innuendos and flirting. Most people drank too much, some behaved in ways they regretted the next day, but short of physical violence, no action was taken, though a few shame-faced resignations would follow extreme behaviour. We did occasionally act badly, even offensively but the law did not intervene and HR’s job was confined to arranging the party – not policing it. Things have changed.
People who have worried most of the year about their jobs and their finances are invited to drink and socialise with colleagues they may not really like, and to let their hair down without saying a single thing that will offend anyone. Some people find that hard enough when sober!
As we say in our office: "All God’s children got an ‘….ism’!". Everyone has an age, a gender, an orientation, a religion (or lack thereof) etc. and we can all say "You offended me, and as a woman/old person/religious person, that went too far, and I want to raise a grievance." Most of us don’t – we snap back, laugh it off and get on with it. Sometimes things are more serious or taken to heart, and things get out of hand.
Last year’s Christmas parties brought the usual round of sexual harassment complaints. We run our own competition for the most offensive thing said at a Christmas party – all contributions welcome. We could send you a list but only if you sign a disclaimer, indemnify us against any injury, real or imaginary you may suffer and promise not to blame us if you make this remarks yourself or pass them on.
Most of these remarks were said by people who were ‘only joking’. Humour is a dangerous thing. Within the last few weeks we have seen a Tory councillor visited by the police for suggestion a woman journalist should be stoned to death – would you like to guess her religion? And of course, we’ve just had the twitterer found guilty under the terrorism laws, for tweeting that he would like to bomb Glasgow airport when it closed and he couldn’t visit his girlfriend.
That would have been OK, according to the judge, if he’d made it plain he was joking. But ‘joking’ is no excuse for workplace harassment, although an employer is entitled to take into account when a complainant has previously been an active participant in ‘edgy’ conduct and now complains about conduct that is within their group’s normal behaviour.
I am also looking forward to the first twitter-triggered Christmas dismissal. Perhaps it will be live video streaming of your colleagues’ behaviour, or embarrassing pictures posted to Twitter or Facebook. I can’t wait – it’s only a question of time!
In the light of all of this, perhaps this year’s Christmas party invitation should read:
- Drink, but not too much
- Drive, but not that night
- Don’t be any cruder or ruder than the group normally is
- Turn your mobile phone off till you leave
- Don’t do anything you don’t want tweeted or on Facebook
- Don’t tweet it or put it on Facebook anyway
- Everything said or done at the party is intended to be a joke
- Don’t make any jokes anyway to be on the safe side
- Don’t breach any of our equal opps or harassment policies (however long)
In your attempts to avoid offence being caused, you will offend everyone who knows how to behave perfectly well and thinks you are being patronising. And the people who really need to take this on board won’t read it, and wouldn’t heed the warnings if they did.
Still, we all know that an important part of the Christmas ritual is complaining about HR being party poopers, and we wouldn’t want to disappoint.
Season’s Greetings to you all – I love the smell of litigation in the morning (only joking, of course…)
Annabel Kaye is an employment lawyer with Irenicon. You can visit her online at www.thirtycubed.com and see her Twitter updates by following AnnabelKaye.
