The legal pitfalls of the office Christmas party and how employers can avoid later repercussions.
Minimising the Risks of Mistletoe Minefields!
As Christmas approaches, many Companies have decided to arrange a party for staff. However, whilst some Companies see this as an opportunity to thank staff for their efforts over the last year, once the levels of alcohol increase, inhibitions and standards of conduct may decrease and Employers may pay the price when staff overstep the mark!
Office ‘punch-ups' and threatening behaviour at office parties are the main offences committed that may require post-party disciplinary action. Other complaints relate to harassment, bullying and other types of discrimination on grounds of sex, race, sexuality, religion, disability or age.
Employers are liable for acts of employees that are performed in the ‘course of employment'. Given that conduct at an office Christmas party will be classed as occurring in the ‘course of employment', Employers need to take steps to minimise the risks of any potential claims, to reduce the risks of alcohol induced indiscretions and to make the necessary preparations to ensure that everyone has an enjoyable and problem-free party.
- Respect and Cater for All – Avoid Discrimination
It is important to ensure that when organising and arranging a party that you are mindful of people of different religions and cultures and that it is non-discriminatory. Given that Christmas is a Christian celebration, not everyone may wish to participate in the festivities. Invite all employees but do not pressurise people into attending. When ordering food and drink, ensure that there are also non-alcoholic drinks available and other foods available other than meat dishes. Be mindful of when the party is to be held, so as to avoid clashes with other religious dates, such as Jewish Hanukkah or the Islamic New Year. Further, consider the time of day at which the party is held. If late in the evening, this may prevent certain employees from attending due to religious beliefs or family commitments. The location of the party should also be chosen so as to provide all relevant adjustments and facilities and to avoid discriminating against staff with disabilities. If the invitation is extended to staff partners, ensure that you extend this equally to staff with same sex partners to avoid sexual orientation claims and discrimination claims. As obvious as it may sound, do not forget to invite those who are employed but currently away from the office, for instance if off on maternity leave.
- Advance Warning
Contrary to the myth, Employers can be liable for other people's actions during a Christmas party even if the party is held outside of work at an external venue and out of office hours. You may also find yourself liable for incidents that take place during an informal gathering organised by employees, without your knowledge, input or financial assistance. It is for this reason that you should forewarn all members of staff that inappropriate behaviour, unwanted conduct and unorthodox use of office property will be dealt with in the same way as it would had it happened in work time/the office. If the party is taking place in the office, you may wish to prohibit misuse of company property and even prohibit certain areas of the office if necessary, especially if there could potentially be a risk to health and safety. Employees should be reminded as to what IS and IS NOT acceptable behaviour and reference should be made to all relevant policies. Remind employees that certain conduct is deemed in breach of their employment obligations and that any such breach will lead to disciplinary action and in extreme cases, dismissal could follow.
You may also wish to forewarn Employees that disciplinary action will also be taken in the event of non-attendance at work the following day or if they attend work late or still under the influence, as a result of over indulgence. Obviously, if this is to happen, it is important to consider this approach across the board and you do not apply this rule in a discriminatory fashion. There may also be genuine reasons for absence, relating to illness or disability and therefore a fair and thorough investigation will need to be undertaken prior to any disciplinary action being taken. You will need to apply the company's sickness and absence policy firmly. The issue of being able to deduct an employee's pay may already be covered within company contracts of employment or you may have an existing process whereby members of staff are asked to sign a document to agree to any such deduction in these circumstances.
- Policy & Procedures Update
It would be a good idea to check and update your current policies and procedures, prior to despatching them to staff or referring them to particular relevant sections within a Company Handbook. Essentially, you need to be referring employees to Company policies relating to Equal Opportunities, Discrimination, Bullying and Harassment, Drug and Alcohol misuse and to a clear Disciplinary and Grievance procedure.By having clear and unambiguous policies in place, this will assist in defending any possible claims that you may receive.
As above, it is important that you apply your policies equally and fairly to each situation. It is worth checking now that you have adequate sickness absence reporting processes in place of which all employees can be made aware and further that your sick pay policies are in line with the statutory sick pay entitlements.
- Full Investigation - Deal with Complaints
Employers are responsible for the actions of their employees towards other employees. It is essential that you ensure that you deal with all complaints received, speedily and fairly. Equally, if either yourself, or your Managers/Directors witness inappropriate behaviour or conduct you must deal with this swiftly. Any failure to act could result in claims for discrimination at an Employment Tribunal. It is also important to ensure that you adhere to fair procedures and that at the very least you follow the ACAS Code of Practice on Disciplinary and Grievance Procedures or your own internal disciplinary procedures. Failure to undertake an adequate investigatory and disciplinary process could further result in a claim for unfair dismissal.
It also worth noting that Employers are not only liable for the actions and conduct of employees but also for third parties, namely entertainers or after dinner speakers!
- ‘Duty of Care' – Be Sensible!
It would be prudent to adopt a sensible approach to the party. In order to do this, ensure that there is plenty of food and non-alcoholic drinks available to everyone. You may also wish to consider limiting or capping the level of free or discounted drinks. Employers owe employees a ‘duty of care' and therefore you should also give some thought to ensuring that employees get home safely if you are aware that they are drinking. In particular, make sure that they do not drink and drive after a party. You may wish to provide contact numbers of local taxis and encourage staff to use them, look into arranging a mini bus for transporting staff, consider ending the party prior to the time when public transport cease to run or arrange for discounts at nearby hotels.
Finally… Don't forget to wish everyone a Merry Christmas!
For all your employment law needs, please contact Nicholas Evans (nicholas.evans@healys.com) at our Brighton office: Healys LLP, 8 & 9 Old Steine, Brighton, BN1 1EJ, telephone 01273 685888.
