Avoiding an employment law hangover at the office Christmas party

Pre-party

1. Guidance & policies – The office Christmas party is an extension of the office environment, even if it is held off office premises and outside of work hours. As such, employers remain liable for acts of harassment, discrimination, assault or other unwanted conduct carried out by their employees. Alcohol-fuelled behaviour, both physical and verbal, is the cause of many tribunal claims each year.  Employers should provide clear guidance that whilst they want employees to let their hair down, employees are expected to comply with the accepted standards of conduct and excessive alcohol consumption, untoward behaviour and discriminatory remarks will not be tolerated and will be dealt with under the disciplinary policy.

2. Venue – The venue should be accessible to everyone including those with disabilities and suitable for employees for all ages. Venues that may offend those of a certain gender or religion should be avoided lest the employer be open to discrimination claims.

3. Invitations – Every employee should be invited to the Christmas party including anyone who may be on sick leave or on family related leave.  Whilst leaving an employee out may lead to victimisation, enforcing employees to attend may also lead to problems. The invitations should therefore make clear that the employees’ presence is welcome but not compulsory.

At the Party

4. Alcohol – Alcohol is perhaps the trickiest part to get right when planning a Christmas party. Christmas parties almost always have an element of free alcohol yet striking the correct balance is difficult; limiting alcohol can be seen as being a bit of a scrooge, yet unlimited access to all manner of alcohol leads to excessive drinking. There are ways around the free-bar scenario such as hiring bartenders to keep an eye on consumption, issuing drinks vouchers thereby limiting the number of drinks any one person can consume or limiting the “free” element of it to beers and wine and allowing the employees to pay for spirits. What is beyond question, however, is that any employees under the age of 18 cannot be allowed to drink any alcohol.

5. Speeches – These are usually the dread of those making them! Invariably the speaker will try to add a few jokes in the dialogue to spice things up and it is important that these jokes are humorous, that they are not offensive and do not alienate anyone.

6. Careless talk – Alcohol loosens tongues and lowers inhibitions. Employers should avoid talking about career prospects, performance and remuneration with employees. What may be said after a few drinks is rarely what is meant in the cold light of sobriety the following morning. In Judge v Crown Leisure Limited an employee who believed he was promised a pay rise resigned when this was not forthcoming and claimed unfair dismissal. Even though it was held that the promise was not intended to be legally binding (helped by the fact it was mentioned at a Christmas party), it demonstrates how unconsidered discussion can lead to issues.

7.  Looking the other way –  It is an offence for an employer to knowingly permit, or even to ignore the use, production or supply of any controlled drugs taking place on their premises.

8. Transport – Employers’ duty of care towards employees extends to the office Christmas party.  With that in mind employers often make travel arrangements for employees to and from the party, even if it is a case of ending the evening in time for the last trains/buses home. If you are not going to provide transport it is important to inform employees that they should make their own travel arrangements.

Post Party

9. Dealing with the hangover – There is usually an inevitable level of post-party absenteeism. Employees should be reminded of what is expected of them in terms of work the following day and, whilst employers should not necessarily expect 100% productivity levels from those who do turn up, it is important that they take consistent disciplinary action for unacceptable absenteeism.  A past history of tolerance towards post-party absenteeism may leave the employer open to unfair dismissal claims when they do decide to dismiss an employee.

10. Claims – Any and all claims should be taken seriously and investigated without undue delay. Employees often see the context of being at a Christmas party as a carte blanche in terms of getting away with less than acceptable behaviour. Those on the receiving end of the unwarranted behaviour will not see it in quite the same way. In the case of Nixon v Ross Coates Solicitors the claimant was seen kissing another employee at the Christmas party and then going to a hotel room with him.  Following the Christmas party the claimant discovered she was pregnant and gossip arose at work regarding the paternity of the child.  The employee raised a formal grievance but it was not dealt with correctly.  She brought various employment claims and, on appeal, the EAT upheld findings of sex discrimination, pregnancy related discrimination and harassment.

Other considerations

11.  Social media – As always, employees should be reminded of the company’s social media policy. It is all too easy to post messages and photos on social media platforms of antics at the office Christmas party that may damage the reputation of the company or infringe on someone’s right to privacy through data protection laws. In the event of any breach the correct disciplinary procedures should be undertaken.

12.  Secret Santa – Secret Santa is often a way for employees to have a little joke and get everyone in the Christmas spirit. In running a Secret Santa event, employers should set out ground rules both in terms of what should be given (i.e. placing a price limit on gifts) and more importantly on what should not be given (i.e. anything that is inappropriate or likely to cause the recipient embarrassment).