Work Christmas Parties
Work Christmas Parties and Other Work-related Social Events
Work Christmas Parties: employers and employees either love them or loathe them, but they remain a feature of most people’s employment. They range from a small social gathering in the pub during the final week before the Christmas break to the full-blown Christmas party where the alcohol flows freely all night. Unfortunately, while many employees will use it to let their hair down completely harmlessly, the Work Christmas party may represent trouble for a small minority. Employees often think that out of hour’s parties, and especially those held off company premises, give them the freedom to do crazy things, but in the eyes of the law, they are considered to be an extension of the workplace. Therefore, employers need to be proactive in ensuring acceptable conduct as they could find themselves vicariously liable for the actions of their employees if those actions are deemed to have been committed “in the course of their employment”, whether or not they were done with the employer’s knowledge or approval.
Vicarious Liability At Work Christmas Parties
Vicarious liability is where a third party is held liable for the actions of someone they are connected to, even though they are not necessarily directly at fault. An employer may be held vicariously liable for the acts of an employee if the employee is acting ‘in the course of employment’, even if the employer has forbidden the conduct. This would include incidents at Work Christmas parties, client functions, work conferences and work-organised social events such as leaving parties.
It would probably not cover an incident when a couple of colleagues met up informally with other friends for a beer at the weekend; neither would it cover a chance meeting in the street between two employees that ended in a fight. In between these categories, there are obviously a number of grey areas that have yet to be the subject of binding case law. Where an event took place, whether it was during working hours or not, and who attended it will influence an employment tribunal’s decision as to what is “in the course of employment”. There needs to be a clear link between the employment relationship and the off-duty conduct for it to become the employer’s legitimate concern. For example, acts of discrimination committed by an employee at a work social event could result in grievances and, ultimately in an Employment Tribunal claim being raised against both the individual and the employer.
The Employer’s Defence
Employers should be aware of the risk of liability for discrimination on any of the protected grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation (although employees cannot bring a claim for harassment relating to pregnancy and maternity or marriage and civil partnership). Under the Equality Act 2010, there is a defence for an employer if it can prove that it took all reasonable steps to prevent the employee from doing the discriminatory act complained of, or from doing acts of that description in the course of his or her employment.
With negligence, if the employer can show that a particular act was expressly prohibited, this should also help its case.
The key for employers is therefore to take sufficient steps to minimise the risk of being held vicariously liable. They can no longer expect not to face the consequences of occurrences at the Work Christmas party of offensive jokes, fighting or other unacceptable behaviour. Employers need to be proactive to prevent these types of incidents from happening, taking into account the fact that many employees are unconcerned about the consequences of their behaviour. Throwing up, throwing food and throwing punches may be seen as perfectly acceptable by some employees, but this kind of behaviour needs to be carefully regulated.
Actions of Third Parties at Work Christmas Parties
Work Christmas Parties are not always self-contained. They often involve interaction with other people, such as employees’ partners, clients, entertainers and waiting and bar staff; you may also be sharing the venue with other companies and members of the public. Unwanted conduct may come not from an employee but from one of these third parties.
Prior to the Equality Act 2010 coming into force on 1 October 2010, liability of employers for third-party harassment was limited to sex-related and sexual harassment. Under s.40 of the Equality Act 2010 employers can now be liable for third-party harassment related to age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.
The Equality Act provides that an employer will be treated as subjecting an employee to harassment where a third party subjects the employee to harassment in the course of their employment and the employer has failed to take such steps as would have been reasonably practicable to prevent the third party from doing so. This will apply only where the employer knows that the employee has been subjected to harassment by a third party in the course of their employment on at least two other occasions, whether or not it is the same third party on each occasion, and whether or not the harassment was related to the same protected characteristic on each occasion.
Entertainers and party venues should be carefully chosen to ensure accessibility to all and to minimise the risk of causing offence.
What Constitutes The Workplace?
It is a long-established legal principle that whether the party or social event takes place in the office or not, it will be considered to be an extension of the workplace and employers can be vicariously liable for the events that unfold. For example, work nights out to the pub or leaving celebrations will often still be considered to be the workplace on the basis that the events would not have been attended but for the work connection.
There are then instances where the formal work party continues elsewhere after the main event. The Court of Appeal looked at what constitutes “in the course of employment” in the context of after-parties. In this case, the after-party was an entirely independent, voluntary, and discrete event of a very different nature to the company-organised party, and yet the Court of Appeal held that the employer was vicariously liable for the assault by one employee on another. Although this may sound extreme, the Court of Appeal decided that since the Managing Director was lecturing the group in his role as a superior when he punched the subordinate, and since the act should be seen against the background of the earlier party, there was sufficient connection between his wrongful act and the employing company (Bellman v Northampton Recruitment Ltd ).
This may seem overly harsh and may even put employers off hosting office Christmas parties altogether, but it is worth noting that the facts of Bellman were very particular. For a more commonplace example, in the case of Shelbourne v Cancer Research UK , it was held that the employer was not liable or negligent when an employee dropped a co-worker on the dancefloor causing spinal damage. Here, Cancer Research had carried out a substantial risk assessment so had discharged their duty of care. Importantly, the wrongful act had nothing to do with the employee’s role at the company so Cancer Research was not vicariously liable, even though the events took place at an Office Christmas party.
Work Christmas Party Policies
Make sure your employees know the boundaries of acceptable behaviour. Remind your staff that they are representing the company and must therefore act appropriately.
All employers need to be aware of the potential consequences of their employee’s acts during working hours and any events out of work specifically organised by the Company. If you do nothing or trivialise any complaints then you could be held liable for the actions of your employee. Just one single event or gesture can give grounds for a claim. It is therefore essential that you draw up an appropriate policy as a valuable precaution, so that should an incident occur, you will be able to demonstrate that you have taken reasonably practicable steps to protect your employees.
In advance of work office parties, employers should provide clear written guidelines to members of staff setting out the standard of behaviour expected of them at such events. The policy should highlight what behaviour is considered inappropriate and unacceptable and what the disciplinary penalties will be for breach of the rules, including possible summary dismissal if the offence is one of gross misconduct. Although it is probably unreasonable to expect employees at an office party to remain completely sober, the policy should state, in particular, that alcohol should be consumed in moderation and that staff should behave in an appropriate, mature and responsible manner. Unacceptable behaviour that might result in a gross misconduct dismissal would include excessive drunkenness, the use of illegal drugs, unlawful or inappropriate harassment, violence, serious verbal abuse, or assault of either another employee or a third party such as a guest or a member of the waiting or bar staff.
Common Forms of Unacceptable Behaviour
In practice, the two most common forms of unacceptable behaviour are alcohol-induced aggressive behaviour and sexual harassment. Employers should check that their anti-harassment policy either cross-refers to their policy on conduct at work-related social events or includes work-related social events within its remit. When investigating allegations of harassment, employers should bear in mind that, while unreasonable, unwanted and offensive conduct cannot simply be excused even if it is a one-off occurrence, because of its nature, an office party affords more opportunity for misunderstanding than the normal office environment. On the other hand, in some cases, a campaign of harassment can be based on incidents both at work and at social events so it is not safe to assume that something that happened at an office party was simply a one-off occurrence.
Work Christmas Party Arrangements
Each workforce is individual. Accordingly, it is important to speak to your staff about what they will enjoy. After all, this is supposed to be a celebration and a reward for hard work. In smaller organisations, this can be done in a team meeting, whereas larger organisations may need to form a committee made up of different sections of the workforce. As well as talking to staff beforehand, it is important to obtain feedback after the event that can be used to plan future events.
Naming The Party
For some people, the very fact that their employer is having a “Christmas” party at all could make them feel excluded. The UK is made up of people of many different faiths, who practice their faith in different ways and others have no faith.
Given the time of year, it is likely to be difficult to avoid any mention of “Christmas”, but Christmas does not need to be the focus of the event. For example, replace “Christmas” with “festive” or “winter” party. The menu does not need to include a Christmas dinner. Traditions such as Christmas crackers and “Secret Santa” could be replaced with other games, such as an awards ceremony celebrating special achievements over the past year. Christmas music does not need to be played (and, indeed, many party attendees may welcome the break).
Date and Time of the Party
Its important to consider when the party will be held. Thursday is a very popular night for Christmas parties, but this also means that the Friday is… “interesting” for the company. You certainly can’t tolerate drunkenness on site, nor can you condone people driving in to work while still under the influence. It may be that you give latitude to people to come in a little late. But: if your business can’t afford for that sort of leeway, then you have to make that clear to the team. If it’s necessary for everyone to be in on time and in good shape, you must communicate that to them in advance so that they have some idea of how you expect them to behave.
A lunchtime event may be more convenient than an evening one for those with childcare responsibilities and having an event on a Friday night, for example, might exclude observant Jewish employees.
If possible, consult with your workforce in good time to identify whether there are any dates and/or days of the week on which they would not be able to attend the party. Once a date is set, give everyone as much notice as possible.
Venue For Your Work Christmas Party
When choosing a venue for your party don’t forget your health and safety obligations. Check the fire exits and that the venue is easily accessible and does not put any disabled employees at a disadvantage.
The physical features of a venue can make it more difficult for people with certain disabilities to attend. You may have a need for the party space to be wheel-chair accessible, but you should also consider what the noise levels and atmosphere of the venue will be like when it is full of people. If loud music will be playing it can be more difficult for wheel-chair users or those with certain conditions (including ADHD) to participate in conversations, particularly if the venue is crowded.
The past two years has been very difficult for many people, and some employees may experience social anxiety at the prospect of a crowded party space. Therefore, consider the size and capacity of the venue and whether it is feasible to have the party in a larger venue which permits social distancing and has natural ventilation.
Entertainment At Your Work Christmas Party
If you are providing entertainment ensure it will not be viewed as offensive by anyone. In Burton and Rhule v De Vere Hotels the employer was held responsible for the harassment of its staff by a speaker, as the employer could have controlled the speaker’s actions. You may want to brief your entertainers about certain topics that you will find unacceptable to ensure that they adhere to your view of reasonableness and acceptability.
Catering At Your Work Christmas Party
Employees of certain religious beliefs may be vegetarian or unable to eat certain foods, such as pork or beef. The easiest thing to do is to ask everyone if they have any special dietary requirements before selecting a venue, so you can be certain which of your short listed venues can accommodate those requirements.
Alcohol At Your Work Christmas Party
There are many reasons why people do not drink alcohol, including pregnancy and breastfeeding, religious, cultural and health reasons. Take care to avoid disadvantaging anyone by ensuring plenty of non-alcoholic alternatives.
In Williams and others v Whitbread Beer Co, three employees at a seminar who were dismissed because they drank at the free bar provided by the company and ended up in a drunken, abusive and violent state were found to have been unfairly dismissed. The unlimited free bar provided by the employer was an important factor in determining whether or not the dismissal was fair.
If you are supplying the alcohol or encourage its liberal consumption you will then be responsible for your employees’ actions while under its influence. Remind employees to make safe travel arrangements home or take steps to ensure that they are well within the legal limits if they are going to be driving home after an event. Consider hiring coaches or minibuses to leave at set times at the end of the event, or providing the telephone numbers for local taxi firms. If you believe someone is over the limit, take their keys, call them a taxi or ask their partner to collect them, or persuade someone who is sober to take them home. This liability stretches beyond the party and into the next day – be careful therefore with staff operating machinery.
The Employment Equality (Religion or Belief) Regulations 2003 make the risks even greater. For instance, if the party is seen as a bonding exercise and one of your employees can’t go because their religion forbids association with alcohol, they could argue that they are being indirectly discriminated against.
It is well known that alcohol loosens tongues and employees are more likely inadvertently to discuss secret company business with either fellow employees or outsiders when under its influence. Therefore, staff should be warned of the risks and consequences of this type of behaviour in the policy document.
You will not have much of a defence if you have turned a blind eye to an employee becoming completely inebriated or indeed if you have even encouraged it by providing a free bar. Try to balance the amount of alcohol you provide with an awareness of your responsibilities without being perceived as frugal. You might supply drinks before and during a meal but have a cash bar after.
Attendance At Your Work Christmas Party
If invitations are extended to employees’ partners, ensure that same-sex partners are also invited and that invitations are not limited to partners who are married or in a civil partnership.
Dress Codes At Your Work Christmas Party
There is nothing to stop you imposing a dress code for your party. However, any dress code should be reviewed to ensure that it does not discriminate against employees of a particular religion or belief. For example, a dress code that requires all women to wear dresses may indirectly discriminate against Muslims.
Harassment is generally defined as unwanted behaviour which a person finds intimidating, upsetting, embarrassing or offensive – just the sort of behaviour that often arises as a result of consuming too much alcohol or ‘letting one’s hair down’. A pat on the bottom or a few inappropriate suggestions may appear acceptable to someone in ‘party mood’ but these are often viewed as being offensive and have both led to individuals being fired.
An employer’s ignorance of an incident is not necessarily a sufficient defence unless they can show that they have taken steps to prevent an employee acting in a discriminatory manner.
Remind staff of appropriate behaviour. This can be done in the form of an email prior to the party, reminding employees that the party’s location is, in essence, an extension of the workplace, so actions that would lead to disciplinary proceedings in the course of a normal working day will do so at the party too.
Remind staff about using social media during the party, particularly avoiding posting images of colleagues on public forums without their consent. What one may consider funny, others may consider embarrassing or offensive.
The Morning After Your Work Christmas Party
If an employee turns up late the morning after the company Christmas party, and you wish to make a deduction from their pay you should include the right to do this in your contracts of employment. An alternative would be to ensure that the employees in question have, in advance of the party, signed a separate document that clearly indicates their agreement to a quantifiable deduction being made in these specific circumstances.
Another possible course of action would be to make it clear to staff in advance of the Christmas party that disciplinary action will be taken against any employee who fails to turn up, or turns up late, the day after the Christmas party and there is reason to believe that the non-attendance/lateness is due to over-consumption of alcohol. It is also advisable to make sure that plenty of food and non-alcoholic drinks are available at the party itself.
Consider warning staff beforehand that unauthorised absence the day after the event may be treated as a disciplinary issue. But remember that employees are likely to phone in sick rather than simply failing to come in to work. While you might have strong suspicions that a hangover is the real reason for the absence, evidence – not merely suspicion – that the employee is not genuinely sick is what is required.
Make it clear what sanctions you will impose on anyone who breaks the codes of behaviour. Disciplinary action for being tipsy at the party, especially if you have provided a free bar, would be harsh but if someone fights, is offensive or brings the company into disrepute there could be grounds for disciplinary action all the way up to dismissal, so it’s absolutely critical that this message is clear.
Avoiding Religious Discrimination
It is unlikely that holding a Work Christmas party would in itself be seen by an Employment Tribunal as religious discrimination. This is because generally Christmas parties are not really about celebrating religion. Rather they are about improving staff morale and loyalty and thanking employees for all their hard work and efforts over the previous year. That said, there is currently no case law on this point and it is possible that a non-Christian employee might argue that the office Christmas party discriminates against them because the employee’s own religious festival is not also celebrated by the employer.
We therefore recommend you are supportive towards employees whose religious festivals fall at different times of the year. In any event, be careful to take the various religions within your business into account when planning the date, location, theme and catering for your Christmas party. For example, an alcohol-fuelled party in a local pub could well deter Muslim employees whose religion forbids association with alcohol. Friday nights cause problems for Orthodox Jewish employees, because they have to be home an hour before dusk for the start of their Sabbath. Issues to consider include: whether or not the venue is suitable and the date acceptable; whether or not any theme is likely to cause offence to anyone; whether or not a choice of non-alcoholic drinks will be provided; whether or not the menu gives sufficient choice, including vegetarian and vegan options; and whether or not other dietary requirements can be accommodated.
A survey carried out by law firm Peninsula suggests that, of the 2000 companies surveyed, a staggering 75% have taken disciplinary action following a Work Christmas party.
Make sure you have a sound disciplinary procedure in place and follow it to the letter to avoid claims for unfair dismissal.
Treat any allegations seriously and investigate using the correct procedures.
If you’ve made your position clear and someone has still mis-judged how they should behave, then you have to act and do so fast. It is no good waiting till the new year to tell someone that they have failed to live up to expectations. By then it will seem to be “ancient history” to them and they may wonder what all the fuss is about.
If you don’t act, you are effectively saying that you have standards but won’t do anything to enforce them. And once you’ve set that pattern for yourself as well as for them, it becomes more difficult to set standards for future events – or even letting things get worse.
While it is important to remember the risks of getting it wrong, hosting a successful Work Christmas Party can be hugely beneficial to morale. This is especially important given how physically distant we have been in recent times. And hybrid working leads to less face-to-face time with colleagues, meaning it is all the more important to make the most of these festive events. So, be sure to eat, drink (in moderation) and be merry! You know your workforce and the type of event that your staff will enjoy. Start by considering what would be a suitable celebration for your organisation and go from there. If in doubt ask the workforce for suggestions, there could be a great idea just waiting to be discovered!
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