And though it’s been said many times, many ways…
…nobody wants to talk to a lawyer when hungover (or ever really).
This year the stakes are even higher given the new ‘preventative duty’ on employers to take reasonable steps prevent sexual harassment in the workplace.
Read on for the full lowdown…
It’s a party, so it’s not work, right?
Alas, wrong.
The safest approach is to always 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.
Well, following a change in the law, assessing and mitigating risk is now a must for employers.
On 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) 2023 came into force.
It amended the existing Equality Act 2010, so as to:
So the change imposes a new preventative duty on employers, but it doesn’t go as far as to create to a new free-standing claim.
The new preventative duty will only be considered by an Employment Tribunal if a claim for sexual harassment has been brought and succeeds.
But, if an individual does succeed in a sexual harassment claim, the Tribunal will then go on to consider whether or not the new preventative duty has been breached.
If it has been, the compensation awarded (which can be significant in discrimination cases) may be uplifted by up to 25% - so the potential additional sanction could be chunky.
This law change relates specifically to claims for ‘sexual harassment’ - but what actually is it?
Defined in s.26(2) of the Equality Act 2010, ‘sexual harassment’ is:
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(2).
Sexual 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.
Under s.26(1) of the Equality Act 2010, 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 have a strong and inclusive workplace culture anyway.
Typically, that will include:
Again, good employers tend to foster this all year around, primarily through the excellent work performed by their HR teams.
Additionally, there are some party-specific steps that should be considered:
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 recognising the contribution made throughout the year by your greatest asset – your people.
With a bit of planning a healthy slug of some 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!
