We are now well into the Christmas party season. Whilst this can be a great time for team bonding, employers should be alert to employment law issues and the contents of their staff policies. It is often not only Santa’s helpers that start the New Year staring at a P45.
There are many risks arising from Christmas parties including fighting, drunkenness, offensive remarks, unfulfilled promises and unwanted contact. Often, Christmas parties will be treated as an extension of the workplace, particularly if only employees attend, and that means that if things go wrong, there can be liability for employers.
Fighting at work amounts to gross misconduct, potentially allowing an employer to fire an employee without notice. However, legal technicalities can still catch employers out.
Employees with more than two years’ service can claim “unfair dismissal”. That means an employer faced with an unfair dismissal claim must prove not only that they had a fair reason for dismissal but also that they acted reasonably in dismissing.
If one employee is fired while another one is let off for similar conduct, it is vital that employers have followed procedures that clearly record a plausible reason to justify treating the employees differently.
Employees often argue that it is unfair for them to be fired for events at Christmas parties, saying matters occurred outside of the workplace. If the party involves lots of people who aren’t normally part of the workplace, then sometimes such arguments can work.
However, even if events occur away from the workplace and don’t involve other employees, a dismissal can still be fair. A real-life case involved an employee driving home drunk from the employer’s lavish Christmas party – on the wrong side of a dual carriageway. The negative impact of the association of the employer with that employee’s actions rendered a dismissal fair, after the correct procedure had been followed.
Other examples include the boss airing their opinions about employees or making promises that they don’t keep. Often there are plenty of witnesses available to back up the employee who, incensed, soon leaves prior to making an Employment Tribunal claim based on a severe breach of trust.
Being passed over for promotion or not having got a promised pay rise can also follow on from unwanted physical contact and lead to discrimination and harassment claims.
In this age of “Me Too”, employers should not need reminding that they can be held liable for an employee’s unwanted approaches – unless they can clearly demonstrate that the errant employee was acting completely on their own account.
How do employers protect themselves from these risks?
You can manage risk by ensuring that well-drafted policies are in place and by making sure that you have easy access to legal advice.
By having policies specifying what is and isn’t acceptable behaviour, employers can more easily disown and distance themselves from inappropriate actions at the Christmas party and thus have no liability for the actions that took place.
Policies providing that pay rises and promotions must be formally approved and in writing and ideally sanctioned by more than one manager would help limit the impact of the scenarios above.
Disciplinary policies can help deal with the fighting scenario above. However, human nature dictates that there will always be cases where claims will arise despite the employer having in place all the policies it needs.
In those scenarios, employers will need specialist legal advice to guide them through the minefield of employment law risks and to find solutions. A practical difficulty is that even if a case can be fought to a conclusion and won resoundingly, the costs of securing that victory, not only in pounds and pence but in management time and publicity, can be huge. Early resolutions are therefore highly desirable.
If you are looking for advice on what action to take if there has been an incident at your Christmas party, please contact David Jepps using the details below.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.