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Letting your hair down: the many legal pitfalls of the office Christmas party
The office Christmas party looms large in the collective psyche of the workplace, for better or for worse. The usual clichés of staff misbehaviour are often comical and in most cases written off as harmless fun. All too often, HR risks coming across as the “fun police” and a dampener on the evening’s festivities. However, the risks posed by the company Christmas bash (particularly when large quantities of alcohol are on offer) are not to be underestimated, as recent cases have shown.
Fights and brawls – who is liable?
In October, the Court of Appeal in Bellman v Northampton Recruitment Limited found that the company was vicariously liable for a physical assault on one of its employees by the company’s managing director, Mr Major. The assault occurred at impromptu drinks amongst a number of employees and their partners after the conclusion of the actual Christmas party. The conversation turned to work matters and a dispute occurred as to managerial decisions taken by Mr Major. Mr Major lost his temper, swore at the claimant and punched him to the ground. Despite being restrained, he broke free and attacked the claimant again. After falling to the ground, the claimant suffered significant head injuries, including brain damage.
The Court, in finding that the company was vicariously liable for the damage caused to the claimant, noted that Mr Major was the controlling mind of the company and was, in effect, crudely asserting his authority as managing director when he punched the claimant. This is despite the fact that the post-party drinks where the assault occurred was entirely independent and voluntary and was not connected with the company’s business, and it was only by chance that the conversation had turned to work at all.
The case highlights just how careful employers need to be in seeking to prevent misconduct by employees at social events. Though acts of violence will never be endorsed by employers, there is an increasing willingness of the courts to find that an employer is liable to cover the damage of employee violence and other wrongs. The courts acknowledge that employers are the ones who create the risk of damage and often have the “deep pockets” necessary to compensate the wronged employees.
The office Christmas party is certainly a time when the risk of sexual misconduct by employees is heightened.
Sexual harassment means "unwanted conduct of a sexual nature which has the purpose or effect of violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment” for the victim.
An employer will be liable for an employee’s acts of sexual harassment on a fellow employee unless it can show it took all reasonable steps to prevent the employee from carrying out the act complained of and from doing anything of that description. Employers who fail to take reasonable steps cannot argue that it would have made no difference and would not have prevented the sexual harassment complained of.
What “reasonable steps” will mean in practice will vary across employers. Usual safeguards will include policies on dignity at work and equality and diversity, warning employees of the consequences of harassment and training them as to what their obligations mean in the context of common workplace scenarios. The reasonable steps defence will only apply to measures taken before the act of harassment complained of. The employer’s response to an allegation cannot cure it of liability. HR must therefore emphasise preventative steps (such as those mentioned above) before the festivities begin. However, dealing with post-event complaints in a fair and robust manner is also crucial.
Preventing misconduct by individual employees is, however, not the only focus for HR at Christmas-time. Where the office party has a theme and a dress code, this must be even-handed as between male and female staff and not be seen to encourage provocative dress: a number tribunal cases have held that the imposition of dress codes which require employees to wear revealing clothing can be sex discrimination or sexual harassment, as it constitutes unwanted conduct which violates employee dignity. There is no reason why this cannot also be the case for one-off dress codes in the Christmas party.
Religion or belief discrimination
The Equality Act also prohibits discrimination against employees on the grounds of their religion or belief. Whilst the legislation does not restrict an employer’s option to put on an office Christmas party for the benefit of its employees, employees of religious beliefs which do not celebrate Christmas or any festive period should be considered. For example, the right of employees not to attend should be respected, for example if they are uncomfortable with the service of alcohol. Employers should also consider religious dietary requirements if food is served at the party.
Key points for HR
There are some measures which HR can take to minimise the legal risks which typically surround the festive period:
- Where an event outside the workplace is organised for employees (particularly where it will involve alcohol), HR should remind staff of how they are expected to behave. It should be made clear that the usual conduct requirements apply, even though employees are not in the workplace.
- Consider having a ‘duty’ senior staff member who can stay sober and diffuse any issues.
- If celebrations continue after the employer-organised event, make clear that attendance is voluntary and (where possible) that this is not a continuation of the event which was officially organised.
- As far as possible, mediate and settle disputes and tensions between individual employees, rather than allowing resentments to fester and potentially come to a head at company social events.
- Ensure that dietary requirements are adequately accommodated.