Christmas is just around the corner, and for the first time since the start of the pandemic, we are free of all Covid-related restrictions. Many employers may be looking to organise the annual Christmas party, and to make it extra special to make up for the preceding two years. While this should be a fun experience for everyone concerned, should they be worried about the potential for employee misconduct? Ben McCarthy, employment law writer at Croner-i, explores this in more detail below.
Christmas parties may seem like the ideal opportunity for employers to allow their staff to let their hair down and dance the night away with their colleagues. To some, the office Christmas party is seen by many as time-honoured tradition, offering a great opportunity to build camaraderie and reward staff for their hard work throughout the year. This year especially, with the cost-of-living crisis and the possibility of in-person festive events for the first time in a while, employees may want to make the most of whatever hospitality their employer has to offer.
That said, such social events are not always plain sailing for employers. The number one concern for employers when it comes to Christmas parties will be employee misconduct — even the most professional employees may behave inappropriately when they feel they are free from the usual constraints of the working environment. Although Christmas parties are fundamentally a social and fun occasion, they are also official company-organised events, an extension of the working environment. In other words, if employees behave in an inappropriate, aggressive, or dangerous manner while at the party, their employer may be responsible for their actions.
Alcohol consumption, coupled with a relaxed social atmosphere, can foster situations which may not occur daily in the office and employers need to be ready for them. For example, employees may start to act in ways that seem out of character, ranging from aggressive behaviour to more serious cases of discrimination and harassment. Legally, an employer has a duty to protect the health, safety and welfare of their employees. By extension, they can be liable for actions committed by employees in the course of their employment if they cannot demonstrate they took “reasonable steps” to prevent it. To this end, companies should have policies in place that set out the type of behaviour expected from employees and what will be considered unacceptable. If an employee claims they are being harassed by a colleague, the company is expected to take swift action to deal with it, in line with their policy.
An employee who is harassed may be able to seek compensation from their employer if it can be shown that the employer took no steps to try to prevent this behaviour. This is known as “vicarious liability” and also extends to work-related social gatherings. The rise of the “MeToo” movement, which originated in October 2017 when Hollywood producer Harvey Weinstein was accused of multiple counts of sexual misconduct, has seen a significant number of women across the globe come forward claiming to have been sexually harassed within a professional environment. If this were to occur at a Christmas party and was not properly managed or responded to by the employer, it could face discrimination claims through vicarious liability. This can result in an unlimited fine from a tribunal and potentially impact upon the overall reputation of the company.
Employers should also remember that they could be vicariously liable for misconduct that takes place within “after party drinks”. Although these are technically not officially organised by the company, it may still be liable for the actions of its employees if it can be established that their conduct is sufficiently connected to their position. An example of this was seen in the recent case of Bellman v Northampton Recruitment Limited, where a manager had punched one of his employees in the face after they, along with some colleagues, had gone for further drinks at a local hotel when the Christmas party concluded. The Court of Appeal found that the company was liable for the actions of the manager as, although this occurred in an after party, all drinks and taxis had been paid for by the company and the manager was acting within his management capacity.
While employers will want staff to have fun on the night, provisions should be in place to ensure behaviour does not get out of hand. The first thing to consider is implementing a policy which addresses office parties and work-related social events, outlining that staff have a duty to behave responsibly at all times. It is also advisable to issue individuals with a reminder that the company’s rules on acceptable behaviour will still apply at the event and that incidents of misconduct will be treated seriously. In these more relaxed surroundings, there is the possibility that misconduct may still occur. If this is the case, employers must back up their earlier promise and ensure any allegations are investigated fully. Any individuals who are found to have taken part in bullying, harassment or any form of physical or verbal abuse should be disciplined accordingly.
Christmas parties should be suitable for all staff, and it is therefore important to make sure aspects such as the venue, activities or catering options are suitable for a diverse range of employees. For example, holding the party in a pub may be considered discriminatory as it could exclude employees with certain religious beliefs from attending, as well as pregnant employees or those below the legal drinking age. All staff should be invited to attend the party as this will offer a chance to build morale between workers which could lead to increased productivity in the long term. Employers should not withhold invitations from those who have performed poorly, or who they think may not want to attend, as this exclusion could have an adverse impact on employee relations. It may also be advisable not to base the entire event around alcohol. If alcoholic beverages are to be served, offer soft drinks as well and remind employees that they should drink responsibly.
The day after the party can also present issues for employers, with absences and office gossip a common occurrence. While it is not necessarily easy to plan for such disruptions, it is advisable to ensure appropriate absence procedures are in place and rely on these as normal. Although office gossip can also be difficult to control, employers should encourage line managers to monitor employee behaviour as normal and remind staff that conversations during working time must remain appropriate. Employees should be reminded that they are expected to be in work on the day and that their absence may be treated as unauthorised. They should also be aware of the procedure for reporting lateness.
A work Christmas party should be a time of joy and celebration which, if managed correctly, could have a positive impact on the business as a whole. Although Christmas parties are usually a positive way of motivating a workforce and a fun occasion for everyone involved, companies must ensure that their workers maintain certain standards of behaviour. For this to be the case, a significant amount of thought and planning is required, and decision makers should be alert to the various pitfalls ahead of time.