‘Tis the Season to be Jolly

As Christmas draws nearer, there will be much anticipation in the office over the Christmas party. A large number of employers find themselves with harassment claims on their hands each year in the aftermath of this event. However, with a bit of forward thinking and preparation, they can much reduce their exposure to claims and ensure that they are able to relax with the other partygoers!

Below we offer a survival guide for the employer, which also contains answers to some frequently asked questions.

Office Party Survival Guide for Employers

Common complaints that arise from the office party are harassment and/or discrimination- which may be on the basis of a person’s sex, race, sexual orientation, religion or beliefs or disability. Most of us can probably recall being told an inappropriate joke or having witnessed an individual, emboldened by a few glasses of Christmas cheer, making unwelcome advances towards a colleague. Also, with the growing popularity of mobile phone cameras, this year is likely to see a rise in the number of complaints about inappropriate photography! Even where the offender does not intend to upset they could find themselves on the receiving end of an employment tribunal claim, and so could their employer.

An employer is vicariously liable for actions of employees undertaken in the course of their employment. Organised work parties are typically considered to be an extension of the workplace; even when the party takes place outside of working hours and the normal place of work.

Since 1 October 2005, there has been a statutory definition of sexual harassment introduced by the Employment Equality (Sex Discrimination) Regulations 2005. In accordance with this, sexual harassment is unwanted verbal, non-verbal or physical conduct of a sexual nature or relating to a person’s sex that violates a worker’s dignity or creates an intimidating, hostile, degrading or offensive environment. Therefore, a rude joke or saucy gift or photograph (which may be perceived as “harmless fun” by the offender!) could easily create an “offensive environment” and lead to a sex discrimination claim. Also, comments of a sexist nature could be sexual harassment.

Similarly, conduct which creates an intimidating, hostile, degrading, or offensive environment on grounds of a person’s race, religion or belief, sexual orientation or disability could also be in breach of discrimination legislation. The test is whether the behaviour could have objectively had a harassing effect, taking into account the perception of the victim. Where this is the case, an employer may be vicariously liable for the discrimination, and could face an uncapped employment tribunal compensation claim unless it can establish a defence that it took such steps as were reasonably practicable to prevent harassment in the workplace. See the Recommended Steps below for information about how best an employer can protect itself against harassment/discrimination claims.

Recommended Steps

1. To defend a claim of harassment or discrimination an employer should be able to show that it took steps as were reasonably practicable to prevent harassment happening in the workplace. To demonstrate this, the employer should:

• have equal opportunities and harassment policies in place;
• have implemented appropriate training for members of staff; and
• have taken consistent disciplinary action for any breaches of the policy.

2. If you receive any complaints about harassment or discrimination these should be taken seriously and investigated thoroughly. Offenders should be sanctioned consistently and in accordance with the seriousness of their conduct, in line with your disciplinary and/or harassment policy and procedures.

3. In advance of the office party, it would be wise to send an email or memo reminding staff of the need to act responsibly. It should be made clear that employees will be accountable for their own behaviour.

4. As a practical point, you should consider having a limit on the amount of alcoholic drinks served at the bar, and provide a good supply of non-alcoholic drinks and food.

5. Consider having someone supervise the activities at the event, who can step in and defuse a potential incident before matters get out of hand.

6. Explore transport arrangements and either provide a means for employees to get home or distribute taxi numbers.

Office Party - Frequently Asked Questions

1. What can I do about employees who fail to turn up for work the next day because they have a hangover?

In advance of the party you could warn staff that disciplinary action could be taken if they are absent from work and it is considered that this is because they drank to excess the night before. This should act as a deterrent. However, it is also important to help employees comply by providing enough food and a good choice of non-alcoholic drinks. Also, a supervisor at the Christmas party could provide potential offenders with an informal warning if it is considered that they have drunk too much.

Of course, if there is a real concern that the party could have a significant impact on staff performance, then the safest option would be to hold it on a Friday night!

2. An employee has complained that she was offended by sexist jokes made by an entertainer I hired. However, I can’t be responsible for the actions of a third party, can I?

Where an employee is subjected to discrimination or harassment by third parties, an employer may be liable if they had sufficient control over the circumstances to have prevented it from happening. Therefore, you would be well advised to carefully research likely material that would be used by an entertainer and check with the employees in advance whether it is likely to offend them. If in doubt, consider alternative entertainment!

3. Two employees at the Christmas party ended up fighting, yet both blame the other person. What should I do about disciplining them?

You should undertake a thorough investigation of what happened, and question other people who witnessed events. If you consider the misconduct sufficiently serious, then both employees could be suspended from work whilst the investigation is conducted (so long as you have a clause in their employment contracts enabling you to do this). The employees should be notified in writing at the outset of the allegations against them.

Once the investigation is complete, the employees should be called to a disciplinary hearing. The evidence should be put to them and they should have an opportunity to state their cases. They have a right to be accompanied to this meeting by a Trade Union official or work colleague.

When you have considered their versions of events and all of the available information, it will be for you to apportion blame in accordance with your reasonable belief. You will then be able to decide upon an appropriate disciplinary sanction for each individual. The employees should be notified of your decision and informed of their right to appeal. If they appeal the decision then they should be invited to an appeal hearing. Someone more senior than the initial decision-maker should preferably hear the appeal. An employee has the right to be accompanied to the appeal hearing by a Trade Union official or a work colleague.

The above process is in accordance with the three step disciplinary procedure contained within the Employment Act 2002 (Dispute Resolution) Regulations 2004. However, where you have your own internal disciplinary policy that goes beyond the basic statutory provisions you should follow your own procedure.

This article is not intended to be a comprehensive review of all developments within the law, or to cover all aspects of the chosen topic. You should take legal advice before applying information contained herein to any specific issue.