Dear Auntie,

Well, it’s that time of year again and we’re busily preparing for the festive season in the office.  In a break from tradition, the directors have decided to invite some of the company’s top clients to our office Christmas party this year.  They are hoping this will help strengthen our ties with them and give them an opportunity to socialise with members of staff who they only really speak to in a work context.  We all hear about the nightmare-stories from office parties and, without wishing to sound like a killjoy, I am keen to do what I can now to avoid any problems as much as possible.  Could you give me the heads-up on key issues to be aware of and tips on what I should do?

Yours sincerely,
Bart Humbug

Answer:

Dear Bart,

You are quite right that although this is the season to be jolly, it is also the season to be cautious.  Office parties are known for giving HR professionals a bigger headache than any hangover when things go wrong as a result of employees and even clients and other third parties “overstepping the line” between what is and is not acceptable behaviour within the informal environment of such events. Then implications for client relationships of inappropriate behaviour at a party could be catastrophic.

One point to note is with regard to confidential information.  You will need to think carefully about whether, in an informal atmosphere where they are more relaxed, you can trust people not to make inappropriate comments about a particular customer or client, or not to discuss confidential matters regarding one client which may be overheard by other clients (who may, for example, be competitors of that client).  

The most obvious – and common – potential pitfall, however, is in relation to sex discrimination and sexual harassment in particular.  We have all seen colleagues losing their inhibitions in an informal setting such as an office party and, sometimes (particularly when a certain amount of alcohol is involved), things can get heated if overly friendly or flirtatious advances are unwelcome. 

A person commits sexual harassment against another if he engages in unwanted conduct related to sex which has the purpose or effect of violating the recipient’s dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.  Whether or not any given conduct falls within the scope of these principles is governed by the concept of reasonableness.  That is, whether in all the circumstances, including the particular perception of the person making the complaint, the conduct in question should reasonably be considered as having that effect. 

Following changes to the Sex Discrimination Act 1995 which came into force in April 2008, the scope of sexual harassment has been widened to cover witnesses to acts of sexually offensive behaviour and also to harassment suffered by employees from third parties.  So if someone behaves in a sexually offensive way towards one of your employees, both that employee and an employee who witnesses that act can make a complaint of sexual harassment.  The other situation – harassment by a third party – would occur where, for example, one of the customers or clients invited to your party subjects one of your employees to harassment and you fail to take reasonable steps to prevent that customer or client from doing so.  Your liability in such cases is limited to the “three-strikes” rule, in that such liability would arise if you know that the employee in question has been subject to harassment by a third party on at least two other occasions (including by different third parties).  You would not, therefore, be liable for sexual harassment if one of your employees is subject to harassment by a client on a one-off occasion at the Christmas party although you should, of course, investigate such complaints fully and take appropriate action. 

Another, perhaps more subtle factor to bear in mind when considering office parties and client entertainment, is the possibility of complaints for discrimination on grounds of religion or belief.  Although alcohol will invariably be available at such events and generally consumed by the majority of attendees, you should be sensitive to the fact that some members of staff may prefer not to drink alcohol, either on religious grounds or due to preference.  Having activities based on alcohol consumption at such events or, for example, a raffle draw where the majority of prizes are alcoholic beverages, may serve to make non-drinking employees feel excluded. 

It is easy in the convivial atmosphere of a Christmas party for people to be less guarded than they usually are about what they say. There is a risk that confidential information may be leaked, and no client will be too impressed by overhearing someone telling an anecdote about a matter you have worked on for them.  You may have express obligations to your clients which could lead to legal action fro any damage suffered from the breach of confidence. 
Finally, another cause for concern for employers during the festive season relates to absences or lateness the day after the office or department Christmas party.  Although some companies choose to address this issue by opening for business later than normal on the day after the office party, this is not generally the case.  Your clients are not going to be impressed with excuses for not having done their work from those they have seen at the party. 

Here are some tips on addressing the above issues:

• It can seem a bit “Big Brother” and counter to the festive spirit but you might want to remind staff in advance of the Christmas party that, although they should of course enjoy themselves at the event, they should also be mindful of the fact that key clients will be present and to conduct themselves accordingly.  It would also be useful to remind staff about the company’s policy on confidential information and to advise them not to discuss confidential matters with regard to the business or clients at the party.   

• Staff should also be reminded  - in an appropriate way - of the company policy regarding sickness absence, attendance/punctuality and bullying and harassment in advance of the party.  It should be emphasised that individuals will be expected to attend work as normal following the party and that any absences will be recorded and handled in the normal way.  Similarly, a “zero tolerance” approach should be adopted to objectionable language and behaviour and this should be brought to the employees’ attention.

• Managers could be told that, as managers, they will be expected to lead by example and also to keep an eye out for inappropriate conduct.    

• Consider sending clients a subtle reminder (perhaps within the email/letter confirming the details of the party) that the company is an equal opportunity employer and operates a policy to that effect.

• If a member of staff or client does make a complaint of harassment following the party, this should be taken seriously, investigated without delay and appropriate action taken.  A written record should be kept about the complaint and the action taken so as to limit the company’s exposure to liability in the event that a similar occurrence takes place in the future.   If the harassment is by a client consider carefully the action you take – doing nothing for the sake of the client relationship will not look good in a tribunal.

Özlem Kulle is an Associate in the employment department and can be contacted for more information on this feature at okulle@foxwilliams.com.