Published: 16 December 2014
The traditional office Christmas party represents a great way to say thank you to your staff for their loyal service during the year, boost staff morale and allow them to bond. At the same time, it also represents a potential legal minefield for employers. The increase in alcohol intake throughout the evening is often inversely proportionate to standards of conduct and behaviour, spelling trouble.
The morning after, you may be faced with something of an employment law hangover, involving complaints such as fighting, harassment and other acts of discrimination that may result in (a) claim(s) in the employment tribunal.
This handy survival guide is designed to provide employers with some handy tips to enable you to safely negotiate the minefield and such unanticipated liabilities for your organisation.
As an employer, as a matter of employment law you may be held liable for any acts performed by your employees during the "course of employment". Even if the party is held outside of work, at an external venue and outside of office hours then it will still most likely be considered as occurring during the course of employment. As such you need to be aware that you may be held vicariously liable for any acts committed by your employees at the party itself which may be considered as harassment, discrimination or in any way misconduct (particularly where you are organising or funding the event).
You should also be aware of the duty of care owed by employers to their employees in terms of ensuring the health and safety of those attending such events.
Planning your Christmas party
There are important issues for employers to consider when planning their Christmas party. In particular, you should make sure it is as inclusive as possible in order to avoid any potential claims of discrimination.
Firstly, consider the date and time of your Christmas party. Be mindful of when you are intending holding the party so it does not clash with other religious dates such as Jewish Hanukkah or the Islamic New Year which might be celebrated by members of staff. If it is held in the late evening you ought also to be sensitive to the fact that this may prevent employees with family commitments from attending.
Don’t forget also to invite anyone who is away on maternity leave. If ‘significant others’ are also invited, make sure that the invitation is extended to those that are not married and same sex partners.
Check the venue to make sure that it provides suitable access and facilities for staff with a disability. If needs be consider what adjustments may reasonably be made to ensure access is unimpeded.
Issue reminder to staff of standards of conduct expected prior to party taking place
Without coming across as a party pooper, you should remind staff in writing of what constitutes unacceptable behaviour and potential disciplinary consequences of such behaviour prior to Christmas Party taking place. This can be done in a general memo addressed to all staff and circulated throughout your organisation in the immediate run up to the party so that it is fresh in everyone’s mind.
Forewarn staff that inappropriate conduct and behaviour at the party will be treated in the same way as if it had occurred in the office during normal working hours. Give examples of inappropriate conduct. Refer to the relevant section of your Staff Handbook/ employment policies and procedures in respect of the standard of conduct expected of your staff. Such policies will include Equal Opportunities, Bullying and Harassment, Drugs and Alcohol Misuse and Disciplinary (highlighting for example fighting and damage to company property).
Assuming that the party takes place during the working week, warn staff of the consequences of being late for work the next day, still being under the influence of alcohol or ‘pulling a sickie’ resulting in non-attendance. Make appropriate reference to your Absenteeism and Sickness policy.
To avoid such problems, it might be worth considering holding the Christmas Party on a Friday evening. That way your staff will have the weekend to recover!
Alcohol and food provision and consumption
Drunken behaviour is the root cause of many employment tribunal claims each year. Consider limiting the amount of alcohol at your Christmas party therefore. Also make sure you also provide food. This way you will reduce the chances of employees becoming inebriated. A free bar is probably not the best idea, only encouraging staff drunkenness and inappropriate conduct as a result of a loss of control.
You also need to make sure you avoid accidents occurring as a result of alcohol fuelled behaviour such as slipping, tripping or falling down flights of stairs and any resulting personal injury claims.
You need to be sensitive to employees who do not drink. You should ensure the Christmas party is as inclusive as possible so that everyone is able to enjoy it. Consumption of alcohol is strictly forbidden under Islamic law. Ensure you provide non-alcoholic options also.The same applies to checking attendees’ dietary requirements. Consumption of pork and products made from pork for example is strictly forbidden under both Islam and Jewish dietary law. Beef is strictly prohibited for Hindus. Food hygiene is also important under religious dietary law. You should make sure that there are suitable food options are available if you have employees of different faiths.
Some of your staff may be vegetarians so ensure you offer them a non-meat option.
Just say ‘no’ to mistletoe
Whilst the offer of a kiss under the mistletoe may still in some quarters be considered a romantic Christmas tradition, it has no place in the modern work place, in particular the office Christmas party.
An employee making an unwelcome invitation of this sort to a co-worker may be held personally liable for harassment under the Equality Act 2010. As the employer, you may also be held vicariously liable for such incidents of harassment. The same applies in terms of any lewd suggestions being made.
Secret Santa gifts
If your work place is considering secret Santa gifts then make your staff aware that such gifts should be inoffensive and that certain gifts may be considered inappropriate and constitute harassment.
A gift of lingerie, for example, although potentially amusing for certain onlookers, may be considered offensive and highly embarrassing by the recipient themselves.
If you have booked an outside entertainer or speaker for the event, check their material in advance to ensure it does not give offence. Make it clear that swearing and any language which may be regarded as offensive or discriminatory is strictly prohibited.
If things do go wrong, be prepared to investigate any complaints received. Despite the repeal of the third party harassment provisions under the Equality Act 2010, it is still potentially open for employees to argue that an employer's inaction in the face of a complaint being received was itself unwanted conduct "related to" a protected characteristic that violated their dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for them, amounting to harassment.
If you can demonstrate that you have taken all reasonable steps to avoid such incidents occurring and that you fully investigated the incident itself in a timely manner, this will potentially afford you a defence as an employer in terms of being held vicariously liable.
Making sure your employees get home safely
You owe your employees a duty of care, so should take appropriate steps to make sure they get home safely. Particularly if alcohol is being provided at the party and you are aware that your staff will be drinking.
You should take appropriate steps to ensure employees do not drink and drive. At the very least you should provide telephone numbers for local taxi firms and encourage staff to make use of them. Also consider ending the party early enough to allow employees to take public transport. Many employers are generous enough pay for mini bus transport or private cab hire to ensure your staff get home safely.
Dealing with any complaints
Whilst you may be feeling a little the worse the wear yourself the day after the Christmas Party, it is important that you do not end up with any legal hangovers. It is essential therefore that you deal with any complaints you do receive from staff swiftly and fairly. Similarly, if you yourself or any of the business’s senior management witness any inappropriate conduct or behaviour during the course of the evening, whether the victim of such behaviour complains or not. Failure for you to act could result in the risk of a claim before the Employment Tribunal.
In dealing with any complaints that you do receive, you should follow your Grievance procedure. Should you consider disciplinary action appropriate as a result of the complaint being upheld following the Grievance Procedure being implemented then you ought to follow your Disciplinary procedure.
Wishing you and your employees a very happy Christmas
Whilst the potential legal pitfalls we have highlighted may leave you feeling that organising and hosting your office Christmas party is a daunting prospect, so long as you follow the tips provided there is no reason why your Christmas party ought not to be a considered a highly enjoyable occasion and resounding success by both you and your employees, ensuring all concerned enjoy a very Happy Christmas and a prosperous New Year.
For further advice and assistance advice and assistance. Please email Julian Cox of the firm’s Employment Department.