Insights

‘Tis the Season to be Jolly


07/12/2011

Christmas may be a time for fun, but perhaps Scrooge was just being a “careful employer”.

Many employers perceive Christmas parties as vital to staff morale but how many consider the employment related problems that such functions can generate?

The legal rules relating to vicarious liability mean that employers may be liable for acts of harassment by their employees or third parties, whether carried out during office hours or at after work gatherings. This could result in Tribunal claims for discrimination and constructive/ unfair dismissal, which will not be subject to any cap on the amount of damages awarded. Alternatively, employers may be faced with serious grievances and be forced to take disciplinary action (possibly dismissal) against offending employees. Often these employees have previously unblemished employment records and act entirely out of character.

The behaviour of employees often takes a nosedive during the festive season with the assumption, often alcohol fuelled, that the normal rules of the workplace do not apply. With the risk of alcohol abuse, fighting, drug taking, harassment, sexual advances and other inappropriate behaviour, it’s a wonder any employer has a Christmas party and that’s without counting the cost of unproductive or absent employees due to hangovers. Parties are more often than not held in public places and any fracas or inappropriate behaviour can result in bad publicity.

Employers should also be wary about unofficial parties and drinks. The fact that an act of harassment occurs outside working hours will not protect the employer. Sexual harassment that took place at a casual drinks gathering after work at an unofficial leaving party was held to be “in the course of employment”, resulting in liability for the employer.

Employers may also be held liable for the acts of third parties. One case saw a successful claim brought by waitresses against their hotel employers for the offensive remarks of a comedian, although it has now been held that this may be going too far as there was no deliberate intention to discriminate.

The unified equality legislation contained in the Equality Act 2010 makes it clear that the protection from harassment and discrimination extends to all of the “protected characteristics” of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. This will, in due course, give rise to a whole new raft of case law. It also poses the question that if an employer has a party for Christmas, why not have one for Diwali or other religious festivals?

Employers will have a defence to any claim for harassment if they can show that they have taken all reasonably practicable steps to prevent the discriminatory act occurring. Accordingly, employers are well advised to have strict policies and procedures (e.g. equal opportunities, harassment, grievances, etc) in place along with adequate publicity and training to ensure that all employees are aware of the rules and policies. More importantly, once the policies are in place they must be followed – it is far worse to have policies that are not adhered to than to have none at all. If any allegations do arise they must be investigated and acted upon, whilst balancing the rights of both employees and employers.

Remember that, in this day and age, most public places have CCTV coverage that may prove useful evidence. However, do not take such evidence as conclusive without further investigation. Just because at the fancy dress party, Santa “kung-fu kicks” Frosty the Snowman across the dance floor, that doesn’t mean there were no extenuating factors or provocation.

Whatever the legal issues that could arise, I think Scrooge was just being mean. So let’s party!!

Gordon Dadds