With the festive season now in full swing, it is more important than ever for employers to ensure that their policies and procedures relating to work-related social events, disciplinary proceedings and equality of treatment are up-to-date and to remind employees of the need to familiarise themselves and comply with these.
Christmas is a notoriously jovial time of the year; however excess alcohol consumption and the resulting lack of inhibition, amongst many other factors, can present great HR challenges. It is vital that employers remember that employment laws are applicable even where an event takes place outside of the workplace and outside of working hours. Not only this, but employers can be held to be vicariously liable for the actions of their employees if those actions are deemed to have occurred in the course of employment.
Assessing The Risks
In order to protect themselves from being the subject of a vast array of potential claims, employers should be wary of the risks of harassment, misconduct, absenteeism, religious discrimination and unfair dismissal inherent during the Christmas festivities and they should consider taking the following practical steps:
- Do not insist that all staff attend the office Christmas party. Christmas is a Christian holiday, so do not pressure someone to attend if they do not want to on religious grounds.
- Ensure that they are supportive and cater for those whose religious festivals and holidays fall at different times of the year.
- Observe and comply with the obligations on employers under the Equality Act 2010; it may be worthwhile introducing a policy on religious holidays catering for time off for religious observance. Refusal to grant employees time off for religious holidays could amount to direct or indirect discrimination.
- Ensure that the event is as inclusive as possible and caters for those who do not drink alcohol or eat certain foods.
- Make it clear to employees what constitutes unacceptable behaviour and the consequences of such misbehaviour. Employees must be aware of boundaries.
- Ensure that employees are aware what is expected of them regarding absence from work following the event.
- Avoid any conversations with employees regarding performance, salary or career prospects whilst at the event. It has been known for promises made to an employee whilst under the influence of alcohol to be upheld by tribunals, even when the employer did not intend for this to be the case.
- Appoint designated staff members to monitor the activities of staff during the course of the event and ensure that matters do not get out of hand.
The following cases illustrate potential liabilities for employers and their responsibilities during the festive season:
Behaviour Outside Of Working Hours
Chief Constable of the Lincolnshire Police v Stubbs and others – The Employment Appeal Tribunal (EAT) held that an employer was vicariously liable for an act of sexual harassment committed by an employee in a pub outside working hours, stating that social events away from the office involving employees from work either immediately after work, or during an organised party, fell within the remit of ‘course of employment’.
Livesey v Parker Merchanting Ltd demonstrated the difficulties in defining ‘course of employment’; a tribunal holding that sexual harassment that occurred during a car journey home from a work Christmas party was not within the course of employment and therefore the employer was not vicariously liable. However, as the harassment in this case amounted to a continuing course of conduct, the EAT overruled the tribunal’s findings on this point.
Williams and others v Whitbread Beer Co – This case illustrates the importance of monitoring and controlling the alcohol consumption and behaviour of employees. An employer who provided an unlimited free bar at an office party was held to have unfairly dismissed three employees for their resulting abusive and violent drunken behaviour.
However, dismissal following incidents at an office social event will not necessarily be unfair, and in Gimson v Display By Design Ltd the employer was found to have fairly dismissed an employee for a fight that took place after the end of a Christmas party. Gimson also demonstrates that it is acceptable for employees to be disciplined for misconduct occurring outside of the office, provided that the incident is sufficiently closely connected to work to have had an impact on the work environment.
Absence Monitoring
Another issue that may arise during the Christmas period is that of unauthorised absences from work. Employers must make their policies and procedures regarding taking holiday and leave readily available to employees and must ensure that employees are aware of the notice periods required to be given. Where an employee takes unapproved leave, the employer must be careful not to impose a disproportionate sanction or they may risk being found to have unfairly dismissed the employee. This was the case in Stott v Next Retail Ltd, where an employee failed to turn up for work on Christmas Eve.
In the event that an employee turns up late for work or does not turn up at all after an office Christmas party or social event, an employer is entitled to make the appropriate deductions from their wages provided that there is provision for this in the employee’s contract of employment. Alternatively, the employee could be subjected to disciplinary action. Again, the employer must ensure that their disciplinary policy is strictly adhered to and employees are aware that disciplinary action will be a consequence of lateness or absence.
Loose Talk
Christmas parties and work social events may also lead to inevitable workplace gossip, as was the case in Nixon v Ross Coates Solicitors and another. The employee was seen kissing a fellow employee and then going to a hotel room with him after a work Christmas party. This led to gossip amongst staff when a few weeks later the employee announced that she was pregnant. The employee in question raised a grievance about this but this was not dealt with by the employer and the firm refused to pay her for time off as a result of the stress caused by the gossip. The EAT upheld the appeal, stating that the employee had been harassed and discriminated against on the grounds of sex and pregnancy, despite the fact that the employee had acted in a manner that was bound to provoke gossip. The employee successfully made out her case for constructive unfair dismissal. This case is a reminder that employers must carefully observe equality legislation and ensure that employees are treated fairly in all the circumstances. Employers may consider making it clear to employees that workplace gossip likely to cause harm to another may result in disciplinary action being taken.
Judge v Crown Leisure Limited illustrates the danger of discussing work-related matters such as promotion or remuneration at an office social event. In this case the EAT held that an employer had been ‘lucky’ in escaping liability where an employee was told by his manager at a Christmas party that he would be put on the same salary as another colleague within a period of two years. The employee then resigned when this promise did not materialise and claimed constructive dismissal on the grounds of broken promise. However, it is not unknown for statements such as this to be taken as creating legally binding commitments where intention to do so is found. Where the subject matter of an agreement is business and there is a ‘meeting of the minds’, there is an onerous burden on the party rebutting the presumption that the promise was not intended to be binding (Edwards v Skyways Ltd). In Judge, the fact that the employee had received an increase in remuneration of 68% over the two years was likely to have tipped the scales in the employer’s favour.
In summary, whilst Christmas and other office social events are a great method of encouragement, motivation and reward for employees for their hard work during working hours, employers must remain mindful and perceptive to the above and act sensibly and proportionately if and when issues do arise.
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