The ‘Office Christmas Party’ can leave employers and employees feeling like the Grinch or Scrooge and while events will not be as ridiculous as those in the eponymous Hollywood film, the occasion and aftermath can quickly complicate matters in the workplace. Issues that may never happen in an office environment are more likely to arise at a party due to their less formal nature (and often through alcohol consumption, shock I know!).
You’ve likely read or been told some ‘rules’ regarding work events such as; do go, but don’t leave early or stay too late, do talk but don’t talk about work or try push for a promotion, don’t confess your love to your work crush and the more obvious don’t over indulge at the bar, gossip and criticize co-workers or the company, flirt with married colleagues or your manager, take part in NSFW conversations or wear risqué outfits. Whilst we probably have all been guilty of not following all of the above at times, and parties are meant to be enjoyed, there are some important things to remember from an employment law point of view.
Christmas parties will often be regarded as an extension of the workplace (especially as staff can feel obligated to attend) and therefore employers can be liable for the actions of their employees. Likewise, employees can face disciplinary action including dismissal for their misconduct (and even be sued personally in some cases of sexual harassment).
A word of warning comes from the recent case of Bellman v Northampton Recruitment Ltd [2018] EWCA Civ 2214 where the employers were held liable for their managing director’s actions in the aftermath of the work Christmas party. Liability here arose when the MD chose to exert his authority over other employees of the company after a work disagreement broke out well into a late-night drinking session which resulted in the MD seriously assaulting a colleague. This case was very much decided on its own facts, but it does show that employers can still be liable for their employee’s actions even when they are under the influence of alcohol or some other intoxicating substance so long as they are still considered to be ‘acting in the course of business’. The seniority of the employee in question within the organisation is also a factor when considering whether there was sufficient connection between the position in which they were employed and the wrongful conduct, as the link will be easier to find with more senior employees.
The most common type of claims resulting from social work events are discrimination, harassment and constructive dismissal although personal injury claims or criminal prosecution may occur (i.e. drink driving, criminal damage, assault etc). There is also the potential that workers may be subjected to third party discrimination by those attending the work events which can again have repercussions for those doing the act and potentially the employer. When considering whether an employer will be held vicariously liable for the employees’ actions they will consider whether such conduct was within the course of their employment (tribunal decisions have confirmed that attending work Christmas parties usually satisfy this).
Harassment in short can be described as unwanted conduct relating to someone’s protected characteristic (e.g. sex, sexual orientation, race etc) which creates an intimidating environment for an individual. Harassment can be in the form of comments, as well as actions, and they need not be directed at the person who complains and as such you can see the potential risks involved at a party where everyone is celebrating the end of another work year (often with too much vigour) and looking forward to the holidays.
Although there are currently no laws in place that prohibit office romances you may wish to avoid the mistletoe (or Mariah Carey statements) as relationships at work can cause issues in the workplace with colleagues and especially where relationships are ended, or advances rejected. Indeed, these situations can also amount to sexual harassment even if advances are made with the best intentions or were consensual at the beginning.
To help try and prevent issues arising employers should ensure that employees are fully aware of what is considered acceptable conduct and ensure staff have received appropriate training. It may also be worth ensuring that the Christmas party, and other work event, are specifically covered within the company’s policies. Different standards of behaviour may be suitable for work events where only staff are present compared to where partners, clients or other businesses are in attendance.
Employers must also ensure that any complaints or grievances are fully investigated, and that they intervene swiftly and effectively if they notice any behaviour that may give rise to a claim. Whilst this would not necessarily negate their liability, it may minimise the potential level of compensation a complainant may receive.
Hopefully this article hasn’t dampened your Christmas spirit and you all enjoy this festive season (responsibly) and have a happy new year! Just remember that the worst thing about the office Christmas party is looking for a new job the next day.
Matthew Rowlinson, Employment Solicitor
