ADVICE: When employees take the festive fun too far

Abigail Halcarz, employment lawyer at leading UK law firm SGH Martineau warns of the pitfalls of allowing festive fun at work to get out of hand. The Christmas adverts are on the telly, lists of ‘must-have’ presents are being compiled and carols will soon accompany shoppers on their travails, but as the works Christmas party looms, it is important organisations don’t get too caught up in the festive spirit. Whilst no-one wants to play the Grinch, it is worth reminding organisations that the Christmas party is essentially just an extension of the workplace; employers should be prepared in advance and protect themselves from unnecessary employment issues following the event. From an employment law perspective, although the party may take place outside of the workplace and out of normal office hours, there remains the risk that an employer will be liable for the actions of its staff. Most concerning from an employer’s perspective, is the potential liability for acts of discrimination or harassment by its staff. At a Christmas party, where employees can easily forget work and get carried away with the atmosphere, many will say and do things they would not normally consider doing. The most likely form of discrimination or harassment to be witnessed at a Christmas party is sexual, but the discrimination or harassment could be on a number of other prohibited grounds, including race, age and sexual orientation – we can all imagine the scenario. Other types of inappropriate behaviour are just as common, such as drink-fuelled aggression directed at colleagues or indeed senior management, often resulting from the releasing of tensions that may have built up over long periods of time in the workplace. Such behaviour could lead to claims for potentially unlimited compensation against both the employer and the employee responsible. The time and effort required by management in dealing with any grievance and/or disciplinary issues arising from any such incident, should also not be forgotten. Incidents such as these are unfortunately all too common and every January, employment lawyers will be inundated with calls from clients that begin: “There was an unfortunate event at our Christmas party...”. To lessen the risk of being that client, employers should firstly recognise the potential for problems and take the following steps: Invites should go to everyone, including those on family-related leave, or absent through illness or injury, as not doing so might result in claims of discrimination; When employees can bring partners, do not discriminate on the grounds of sexual orientation and assume all partners will be of the opposite sex; Ensure that you have an equal opportunities/anti-harassment policy in place; Shortly before the Christmas party, remind employees of the existence of the policy and confirm that it applies equally to business events outside of the workplace and outside of office hours; Tell employees to enjoy themselves and have a good time, but remind them that inappropriate behaviour will not be tolerated and could result in disciplinary action; If hired entertainers tell racist, sexist or offensive jokes and the employer does not fulfil its duty to protect employees from this unwanted conduct, it could be liable for harassment claims; Consider limiting the bar tab. Arguably it is irresponsible to provide limitless quantities of free alcohol to staff and a limitless free bar would not assist in defending any legal action resulting from an act carried out by a member of staff that was aggravated by alcohol consumption; Consider appointing a senior, responsible employee to stay sober, monitor behaviour and step in if necessary. Christmas Gifts with a hidden agenda... Given the inevitable gifts and invitations to other organisations’ Christmas festivities it is important for employers to be mindful of their potential liability under the Bribery Act 2010. The failure to prevent bribery and corruption is a strict liability and the only defence is if the employer can show that it has ‘adequate procedures’ in place to prevent bribery and corruption. All organisations, irrespective of their size, should have policies in place and employees should be reminded of what is and isn’t acceptable. Liability arises from both offering and receiving bribes. Reasonable gifts and hospitality, such as a bottle of wine or an invitation to dinner should not raise too much concern, but if employees are whisked away on a private jet, sipping champagne to meet Father Christmas in Lapland, questions may need to be asked. About the author: Abigail Halcarz is an employment solicitor in the Commercial Group at UK top 100 law firm SGH Martineau LLP., acting for a variety of private companies, educational establishments and individuals in both contentious and non-contentious employment matters. Her experience includes advising clients on disciplinary procedures, grievances, changing terms and conditions of employment, potential employment claims including unfair dismissal, wrongful dismissal and redundancy; drafting and reviewing organisations’ employment policies, procedures and handbooks to ensure full compliance with current legislation; and representing organisations at all stages of an employment tribunal claim.