14 December 2017
It’s that time of the year again – the Christmas party season.
With the run up to holidays and the temptation of free booze, people can get overexcited and may act out of character. The relaxed atmosphere at the Christmas party, plus the tendency to go overboard on the booze may be the catalyst for new relationships to develop in the workplace. This can lead to allegations of partiality, undue influence and conflicts of interest.
It’s not uncommon for companies to outlaw office relationships, which can give rise to major difficulties. Any disciplinary action would have to follow fair procedures and ensure that all members of staff are treated equally. For example, dismissing the woman whilst retaining the man would almost certainly be a recipe for a successful sex discrimination claim. Generally, such matters are dealt with informally by employers and only if this fails would disciplinary action be taken – it would have to be handled in the same way as any other performance issue.
By thinking about potential problems such as this, companies can make it a happy Christmas for managers and staff and minimise the risk of employment tribunal claims.
Here are some common problems which might arise over the festive season:
Q: What if an employee who has clearly drunk too much at the office Christmas party is planning to drive home. It’s not your responsibility is it?
A: Wrong. As an employer you have a duty of care for your employees. As it’s the Christmas party you need to take some responsibility. Think about travel arrangements and maybe end the party before public transport stops running, ensure that sufficient taxis are arranged for employees and certainly encourage the employees to use them.
Q: A couple of the male members of staff are using their new camera phones to take surreptitious pictures of a female employee’s short skirt and cleavage at the office party. These are then posted on the company’s intranet the following day. Does the employer have any liability if the secretary decides to take a sex discrimination case?
A: Yes, behaviour of this type could well amount to sexual harassment which is a form of sex discrimination. Bear in mind that under the vicarious liability rules, it is the employer who will be responsible for the discriminatory acts of your staff unless you take reasonable steps to control them. The easiest way of preventing any problems is to issue a clear policy on the use of phones in the work place. It should be noted that the Christmas office party is considered to be an “extension of employment”. Exactly the same principles would apply to offensive e-mails being circulated around the office concerning someone’s behaviour during the office party or indeed offensive banter or unwelcome groping under the mistletoe.
Q: In a display of generosity, an employer hires a comedian for the office party. Unfortunately, many of his jokes are offensive and obscene and are directed at both the male and female members of the audience. A female employee brings a claim for sex discrimination claiming that she had been sexually harassed by the comedian’s behaviour. Does she have a case?
A: The good news for the employer is that she probably does not. As the conduct was not specifically directed at females it could not be sex discrimination – ie the men had suffered in the same way. The woman had suffered the treatment merely by dint of being there, not because of her sex. This seems to mean that if an employer or someone for whom the employer is responsible treats men and women equally badly there is a defence to a sex discrimination claim! She may have grounds to claim “constructive dismissal”, but that’s another story.
Q: The office party gets out of hand and two of your employees become drunk, abusive and violent. Their behaviour is regarded as so bad that they are subsequently dismissed but claim unfair dismissal. Do they have a case?
A: Although much will depend on the facts of each case, tribunals have held that the conduct of employees in getting outrageously drunk such that they commit acts of violence or criminal damage can amount to a fundamental breach of contract. It does not matter that the bad behaviour was short lived. What matters is that the employer’s response is of a type deemed to fall within a band that employers could reach. To avoid leaving anything to chance employers should ensure that all employees know the penalties for either getting drunk at work, or from any unacceptable behaviour arising from it. That way, you should be covered if you wish to justify dismissal for a single offence, should the need ever arise. However there must be consistency in applying any policy, ie if you turn a blind eye on one occasion, you will be in a weak position to justify a hard line later.
Q: How can you make sure people don’t get too drunk and fail to turn up for work the day after the party?
A: Make sure there are plenty of non alcoholic drinks and enough food. Before the party ensure that all staff are aware that disciplinary action could be taken if they fail to turn up for work and there is reason to believe it is due to too much booze.
Q: It’s the firm’s Christmas party and you make a (rather drunken) promise to increase an employee’s pay. Can he hold you to it if you later say you did not mean it?
A: In principle there is no reason why a sufficiently senior manager cannot bind the employer and there is no requirement for a promise of this nature to be in writing. On the particular facts of a recent case, the Court in fact held that there was no “intention to create legal relations” – a requirement for any contract to have legal effect. So in that particular case, the promise was not enforceable. Having said that, you should take care when discussing pay with staff. In the convivial atmosphere of an office party it might be better to talk in vague, non specific terms and confirm your true intentions soon after in writing.
Q: What if you can’t afford to pay a Christmas bonus this year although you have paid it for the last ten years. Employees will be disappointed but there is no problem with the law is there?
A: Wrong. Even though the bonus is discretionary, staff can argue that it has become contractual through custom and practice. Before deciding not to pay tell staff why you feel unable to pay it and try to agree a solution. For example you could offer to pay a proportion of the bonus or stagger payments in the next few months. Or you could offer to pay the drinks bill at the Christmas party!
Generally speaking, problems can often be avoided if employers have policies and procedures in place which cover the key issues like discipline and grievance, bullying and harassment, discrimination and absence. Following those procedures combined with the keeping of proper records of meetings etc are often the key to defending employment tribunal claims and avoiding the Christmas hangover lasting well into the New Year!