Top Tips For A Trouble Free Work Christmas Party
The work Christmas party is a good way of showing your appreciation to your workforce for their hard work, commitment and loyalty through the year. It also provides the opportunity for your employees 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 and can easily lead to costly tribunal claims for sexual harassment or discrimination if they are not planned wisely.
Employees often think that out of hour’s parties, and especially those held off company premises, give them the freedom to do crazy things, but in the eyes of the law, they are considered to be an extension of the workplace.
While no one wants to be the office Scrooge and detract from the positive outcomes of such an event, business owners should be aware of the potential consequences of their employee’s acts during working hours and at any events out of work specifically those organised by the Company.
Relevant Employment Law
- Health and Safety at Work Act
Employers have a general duty under s.2 of the Health and Safety at Work etc Act 1974 to ensure, as far as is reasonably practicable, the health, safety and welfare at work of their employees. This means that any event which is associated with work e.g. hosted or organised by the management team, the statutory duty is likely to apply.
Business owners should therefore take reasonable steps to ensure that:
- the venue of choice does not present any health and safety risks,
- employees do not put themselves or others at risk either during or after the party,
- employees do not act in any way that is likely to risk the health and safety of others, and
- employees can get home safely after the party.
Under s.7 of the Health and Safety at Work etc Act 1974 employees have a general duty to take reasonable care of their own health and safety and that of others who may be affected by their acts or omissions at work. Employers should therefore remind employees of the health and safety implications of excessive alcohol consumption at the party.
Evidence showing that these aspects have been looked at will assist your defence should a claim arise.
The most likely claims to arise as a result of a party or other event are harassment claims. The Equality Act 2010 contains a definition of harassment. It occurs where person A engages in unwanted conduct related to a relevant “protected characteristic” that has the purpose or effect of violating person B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. The relevant protected characteristics for harassment are age, disability, gender reassignment, race, religion or belief, sex, and sexual orientation.
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.
Harassment based on association and perception are also covered. For example, an employee who is harassed because they have a disabled child or a heterosexual employee who is harassed because colleagues believe they are gay are protected.
Conduct should only be regarded as harassment if, having regard to all the circumstances, it should reasonably be considered as having that effect. In other words, there is an objective element to the harassment test where it can not be established that the harasser had a discriminatory purpose. The intention is that an over-sensitive complainant who takes offence at a perfectly innocent comment will not be considered as having been harassed for the purposes of the legislation.
Employers are also liable for the discriminatory actions of their employees carried out in the course of employment. Discrimination legislation states that any act committed by an employee in the course of their employment is to be treated as also being committed by the employer, regardless of whether the employer knew or approved of the action. Whether or not an act of discrimination is carried out in the course of employment is a question of fact to be decided by tribunals. Most tribunals will find that discriminatory acts that take place at a party that is organised or funded by the employer have been carried out in the course of employment.
However, an employer may be found not to be liable if it can prove that it took steps that were reasonably practicable to prevent the employee from committing such an act in the course of their employment. Therefore, in order to have a defence, employers should send a statement to all employees in advance of a party, setting out the standards of behaviour and conduct expected from them and the consequences of non-compliance.
Employers should ensure that the choice of party venue and catering arrangements do not indirectly discriminate against employees of a particular religion or belief. For example, both alcoholic and non-alcoholic drinks should be available and a vegetarian alternative should ensure that religious requirements relating to not being permitted to eat certain meats such as pork and beef are taken into account. The location should be easily accessible and not put any disabled employees at a disadvantage.
There is nothing to stop employers imposing a dress code for the party. However, any dress code should be reviewed to ensure that it does not discriminate against employees of a particular religion or belief. For example, a dress code that requires all women to wear dresses may indirectly discriminate against Muslims.
Any entertainment should be checked in advance of the party to ensure it will not cause offence to anyone.
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.
Employers may be held directly liable under common law if they do not take reasonable care of employees and their guests attending work parties. A claim under common law is likely to be based on negligence and in order to succeed the injured party would have to show that:
- the employer owed them a duty of care;
- the employer breached that duty;
- they suffered an injury caused by the employer’s breach of duty; and
- the injury was reasonably foreseeable.
Employers may also be held indirectly liable for harm caused to other employees or third parties by the negligent acts of their employees in the course of their employment. For example, if an employee causes an accident after drinking too much alcohol at the Christmas party, the employer is likely to be held vicariously liable, as the employee was carrying out, albeit negligently, what they were authorised to do. Employers should therefore take all reasonable steps to ensure that employees do not engage in unlawful conduct and that clear guidelines as to what is and is not acceptable behaviour are set out in advance.
Relevant Case Law
- Aitken v Commissioner of Police of the Metropolis  EWCA Civ 582 CA.
PC Aitken worked as a police officer in the London Borough of Southwark. In 2005, he had a period of leave for depression and was diagnosed with obsessive compulsive disorder, which meant that, among other symptoms, he had a tendency to binge drink. In December 2005, PC Aitken attended a workplace Christmas party. After drinking heavily, his behaviour became aggressive and he made suggestive remarks to female colleagues; threatened to punch a female officer; and squeezed the hand of one colleague and the arm of another. Following a further period of sick leave, the police force decided that PC Aitken should be retired on the ground of ill health. PC Aitken brought various disability discrimination claims related to his treatment by the police force. The employment tribunal dismissed all of PC Aitken’s claims, a decision that was later upheld by the Employment Appeal Tribunal (EAT). The employment tribunal found that the employer acted because of how PC Aitken appeared to others, and did not act on the basis of assumptions about mental illness. The employer’s actions did not constitute disability discrimination.
- Chief Constable of the Lincolnshire Police v Stubbs and others  IRLR 81 EAT.
The Employment Appeal Tribunal (EAT) held that the employer was liable for the sexual harassment of a police officer that took place during social gatherings of colleagues in a pub. The occasions on which the harassment occurred were described by the EAT as “social gatherings involving officers from work either immediately after work or for an organised leaving party”. This meant that they could be described as an “extension of employment”. The police force as the “employer” was therefore liable for the sexual harassment.
- Bhara v Ikea Ltd ET/1311146/10
Mr Bhara was a “well-regarded” employee who was involved in organising the company’s Christmas party. At the party, he did not start drinking until 10pm, when he had finished his hosting duties. At 11.30pm, Mr Bhara was outside smoking when he warned a colleague, Mr Sutton, who was supposed to go to work the next day, not to drink too much. Mr Sutton reacted angrily and a “tussle” ensued. During the employer’s investigation, both men played down the “wrestling match”. Mr Bhara described the incident as a “play fight”. Mr Sutton said that it was just “mates having a laugh”. Although the disciplinary process stalled when Mr Bhara raised a grievance about the way in which it was handled, the employer eventually decided to dismiss Mr Bhara. Mr Bhara claimed unfair dismissal. While agreeing that some aspects of the employer’s handling of the dismissal could have been better, the employment tribunal was not convinced that the employer’s actions were outside the range of reasonable responses, given the extent of the investigation and the reasonableness of the belief in the misconduct, which justified dismissal. The employer was entitled to treat fighting with a colleague as “a matter of the utmost seriousness”, even if it appears that there were “no lasting hard feelings” between Mr Bhara and Mr Sutton. While an employer is certainly not obliged to dismiss in these circumstances, dismissal was a sanction open to the employer in this case.
- Williams v The Whitbread Beer Company Ltd 19 June 1996 CA.
A number of employees were involved in a drunken brawl on the first evening of a residential training course organised by the employer. In particular, one employee was abusive to a senior manager and threw beer over his head. The manager responded by punching the employee in the face. Following this incident both employees were dismissed. An employment tribunal ruled that, although the employees’ behaviour had been deplorable, the employer had acted unfairly in dismissing them. This decision took into account the fact that the employer had provided a free bar and that the incident had been over in minutes and had not been witnessed by others.
- Focus DIY Ltd v Nicholson  EAT/225/94.
A supervisory employee who openly smoked cannabis at a party held for members of staff and their guests at a local hotel was dismissed following a complaint about her conduct. The Employment Appeal Tribunal ruled that the dismissal was fair because the employer had genuinely lost trust and confidence in the employee’s ability to manage junior staff as a result of her conduct.
- Bellman v Northampton Recruitment Ltd  EWCA Civ 2214.
A Court of Appeal Judge held a recruitment agency vicariously liable for the behaviour of its managing director after he punched one of his employees, causing him brain damage, at a Christmas party.
If an employee fails to attend work on the day after a work party, the employer is entitled, in principle, to treat the unauthorised absence as a disciplinary matter. However, it is more likely that an employee will phone in sick rather than simply fail to attend work. While an employer might suspect that an employee is malingering or has a hangover, it is important that it clarifies the reason for the employee’s non-attendance before taking action. If the employer has evidence to suggest that the employee is not genuinely sick (mere suspicion is not enough), it may treat the absence as a disciplinary matter.
75% of companies have taken disciplinary action following a Christmas party
A survey carried out by law firm Peninsula suggests that, of the 2000 companies surveyed, a staggering 75% have, at some stage, had to take disciplinary action following a staff Christmas party.
Top Tips To Minimise The Risk
All these cases offer important reminders of the risks involved with events outside of the workplace. An appropriately worded conduct statement issued to all employees in advance of the event will ensure all employees are aware of the standard of behaviour expected at work events, and the consequences of falling below those standards. By outlining what is and is not acceptable conduct, employees may be more inclined to exercise caution when the drinks are flowing but if an incident does occur you will be able to demonstrate that you have taken reasonable practicable steps to protect your employees.
My recommendation is to send the conduct statement out several weeks prior to the event, preferably in the invitation for the event. So it would contain the basics (the venue, time etc.), but also Remind everyone that they are representing the company and must therefore act appropriately. This is your opportunity to remind everyone about your expectations regarding their behaviour. Concentrate on defining acceptable behaviour and recognise that harassment can affect both men and women. This will help to ensure that there’s no confusion among employees and everyone is aware of what will be regarded as inappropriate behaviour.
It’s important to remind employees that the party’s location is, in essence, an extension of the workplace, so actions that would lead to disciplinary proceedings in the course of a normal working day will do so at the party too. Staff should also be reminded of your social media policy, to avoid numerous photographs of respected professionals in party mode appearing on the internet.
Encouraging everyone to act to stop, rather than tolerate, mild but unwanted sexual harassment by firmly telling a harasser that their attentions are unwelcome should help to nip any incidents in the bud.
Four Points to Consider Before The Event:
- If you are providing alcohol: avoid hasty decisions and approach any situation in an objective and independent manner – it may not be reasonable to dismiss someone for drinking too much of it! Try to balance the amount of alcohol you provide with an awareness of your responsibilities without being perceived as frugal, for instance you might supply drinks before and during a meal but have a cash bar thereafter.Remember that some religions forbid association with alcohol.
- If you are providing entertainment: ensure that it will not be viewed as offensive by any of your employees. In Burton and Rhule v De Vere Hotels the employer was held responsible for the harassment of its staff by a speaker, as the employer could have controlled the speaker’s actions. 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.
- Avoid drink driving: if the party is being held away from the workplace, as they normally are, it is best practice to protect employees by providing hotel accommodation or suitable transport home after the celebrations are over. You may dedcide to provide a coach to collect and return your employees or you could ensure that a number of taxis will be available at the venue at the end of the event. At the very least, remind staff to make safe travel arrangements home and if you believe someone is over the limit and is intending to drive take their keys, call them a taxi, ask their partner to collect them or persuade someone who is sober to take them home.
- Be wary of the after party: while an employer may be liable for an employee’s wrongdoing at the Christmas party itself, employers should make it clear that they will not endorse any unofficial after party that some employees may be planning separately. Such after party events are often a grey area in terms of whether an employer is vicariously liable for acts which take place there and it is preferable that they don’t happen at all. However, if they are to go ahead, employers need to distance themselves from it, making clear that it is to be held at a different location and they will not be making a financial contribution. If an incident occurs, these measures will help prove that the after party was not in the course of employment and an employee who committed any wrongdoing was on a “frolic of their own”.
- The morning after: let staff know well in advance of any special working arrangements there might be for the morning after the event – such as coming in late or having the morning off. Make sure they’re aware of what is and isn’t acceptable, and remind them of the importance of being entirely alcohol free before they attempt to drive. Also ensure any employees who had been drinking the night before are not asked to drive for work purposes the following day as, in certain circumstances, you can be prosecuted as well as the employee in relation to driving offences committed the morning after the event.
Also remember that not all staff members may celebrate Christmas, so be sensitive to the fact when planning your event.
Meet with managers prior to the event to ensure that they step in to diffuse any potential difficult situations before they get out of hand.
Three Points to Consider If An Incident Occurs:
- Make sure that employees have the ability to raise complaints in the knowledge that they will be taken seriously and sympathetically. Having a clear bullying and harassment policy will assist with this. Try to ensure that complaints are investigated by a manager of the same sex.
- If an incident does occur remember that 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.
- If an employee raises a complaint of harassment or discrimination relating to an incident at a work party, it is important that you act promptly. Failure to do so could amount to a breach of the implied term of trust and confidence, which could result in a claim of constructive dismissal if the employee resigns as a result. Failure to take an employee’s grievance seriously may itself amount to discrimination. You will need to decide whether the matter can be dealt with to the employee’s satisfaction informally or whether it is necessary to deal with it formally under your grievance, bullying, equal opportunities or anti-harassment procedure. As an allegation of harassment could form the basis of a complaint to an employment tribunal you should ensure that you comply with the provisions set out in the ACAS Code of Practice on Disciplinary and Grievance Procedures.
Disciplinary action for being tipsy at the party, especially if you have provided a free bar, would be harsh but if someone fights, is offensive or brings the company into disrepute there could be grounds for disciplinary action.
The recommendations outlined above will help minimise the risk of harassment.
When choosing a venue for your party don’t forget your health and safety obligations. Check the fire exits, disabled access and catering for various dietary requirements.
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!
Template Notice to Send to Employees In Advance of A Company Christmas Party
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