And though it’s been said many times, many ways…
…the Christmas party still provides a host of potential pitfalls for employers and employees.
So here’s our Grinch-like annual steer to help ensure the after effects of your bash are limited to those that can be remedied by some gentle medication and a greasy breakfast.
Let’s face it, nobody wants to talk to a lawyer when hungover (or ever, really), so read on for our top tips...
It’s a party, so it’s not work, right?
Alas, wrong.
The safest approach is to just consider the office party as an extension of the workplace. And remember the employment relationship – and the myriad of rights and obligations it entails – continues to subsist regardless of the social nature of the occasion.
By way of cautionary tale for employers, the verbal promise of a pay rise made at an office party has been held to be capable of amounting to a contractually binding promise. So be careful what you wish for, and what wishes you grant…
For employees, an act of misconduct at the work do, is still an act of misconduct. Even if it takes place outside of the workplace, it could still result in disciplinary proceedings. So remember, Santa Claus is coming to town and… well… just be good (for goodness sake).
Also, be mindful that actions of employees during the party are likely to be deemed to be ‘in the course of their employment’ and, therefore, may be considered actions of the employer. So when the drinks start flowing and inhibitions fall away, an employer’s liability for the conduct of its employees does not.
Every ill-advised advance or clumsy lunge may be treated as being the action of the employer, as well as the misguided suitor. And when it comes to deciding who to bring a claim against, as the option with deeper pockets, the employer will almost invariably be included in any proceedings.
One of the perennial pitfalls is the threat of claims for sex-related harassment. This is ‘unwanted conduct’ relating to a person’s sex and/or ‘conduct of a sexual nature’ that has the ‘purpose or effect’ of either ‘violating a person’s dignity’ and/or of ‘creating an offensive, intimidating or hostile environment’.
It can range from an inappropriate joke to a serious sexual advance. It can be a major one-off occurrence or an accumulation of more minor incidents.
Budding Secret Santas should be aware that the giving of inappropriate gifts can lead to problems. A notorious example is that of a senior manager who presented an employee with a phallic-shaped festive chocolate. And therein, not only prompted excruciating embarrassment all around, but also committed a clear act of harassment contrary to s.26 of the Equality Act 2010.
Sex-related harassment also includes inappropriate physical contact. A solid rule of thumb: if the contact is unwelcome, it may well constitute harassment. A lingering touch of the shoulder of an employee in a sleeveless dress has been deemed to amount to sex-related harassment as it transcended the boundaries of ordinary social contact.
Obviously, context is essential when considering physical contact; however, the safest starting point is to assume that the annual bash is strictly a non-contact sport.
Any risqué comment or ‘banter’, whether intended in jest or not, can have decidedly unfunny outcomes. That applies not only to sexual comments but also to comments relating to any ‘protected characteristic’ (e.g. sex, age, disability, race, religion or belief, sexual orientation, gender reassignment, pregnancy or maternity, and/or marriage and civil partnership).
And remember it is the effect of the conduct (e.g. how it is perceived) that really counts, not the intention behind it. So whether intended as a joke, or even a compliment, if it relates to a ‘protected characteristic’ and has the effect of ‘violating a person’s dignity’ and/or of ‘creating an offensive, intimidating or hostile environment’, it will constitute unlawful harassment.
For those who do dare to party, it is not all bad news. Issues can be avoided with the application of a bit of common-sense, and an employer will have a defence against discrimination claims if it has taken all reasonable steps to prevent it.
Of course, the risk of discrimination is not just for Christmas, and so good employers will provide basic training on this type of thing periodically anyway. Having a strong and inclusive workplace culture also helps. Again, good employers tend to foster this all year around, primarily through the excellent work performed by their HR teams.
Additionally, there are some specific steps that are worth considering:
These simple steps should serve to limit both the scope for problems occurring in the first place and the potential liability if an incident does occur.
Despite its hazards, the Christmas party remains a great way of generating goodwill and recognising the contribution made throughout the year by your greatest asset – your people.
With a bit of good old-fashioned common sense, hopefully this yule-tide institution will continue to be enjoyed (and dreaded) by all for many years to come.
Have fun and Happy Christmas!
