Posted by Malcolm Gregory, Partner
Is Christmas just a celebration or can it be an employment law headache?
With the festive season now in full swing, hopefully it’s only the repetitive Christmas music giving you a headache. However, without wanting to sound like Scrooge, you must be aware during the festivities of employment law issues that could cause an even bigger headache.
All I want for Christmas is … trouble free festivities
Christmas is a time to celebrate and have fun, but as an employer, you must ensure the festivities are not offensive, inappropriate or in any way discriminatory.
In Nixon v Ross Coates Solicitors (EAT 2010), Ms Nixon was seen by colleagues at the office Christmas party ‘flirtatiously kissing’ the IT Manager. Ms Nixon said that she was so drunk that she did not know what was happening, and did not know whether sexual intercourse had later taken place between herself and the aforementioned IT Manager. When Ms Nixon informed her employer in the New Year that she was pregnant, colleagues spread unpleasant rumours about the paternity of her child. It was held that this disagreeable gossip, which the employer failed to quell, amounted to discrimination on grounds of pregnancy.
Keep an eye on the mistletoe and wine
Christmas undoubtedly involves parties, alcohol consumption and possibly some mistletoe. However, keeping the celebrations at work appropriate is critical if you want to avoid potential claims.
Section 26 (3) of the Equality Act 2010 specifically prohibits sexual harassment, which is defined as unwanted conduct of a sexual nature that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for that person. The definition of sexual harassment also includes circumstances wherein a person is treated less favourably as a result of their rejection of conduct of a sexual nature.
The Christmas party is an entertaining and celebratory event. Nevertheless, one should always make sure that the event doesn’t turn sour. A recent example of such an occurrence involved a senior member of a company’s staff, who admitted to making sexually explicit remarks in public about a 29-year-old female colleague. The comments were made during the office Christmas party, and caused great embarrassment and offence. The case settled for £1 million.
It’s Christmas time, there’s no need to be afraid … or is there?
As an employer, you may be liable for the behaviour of your employees outside of working hours.
Section 109 of the Equality Act 2010 says that anything done by a person ‘in the course of their employment’ must be treated as also done by their employer, regardless of whether or not it is done with the employer’s knowledge or approval. In the case of Jones v Tower Boot Co (1997), the ‘course of employment’ criteria included work-related social gatherings. It can however be a grey area when there are impromptu gatherings after work that are not officially organised by the employer. Generally, the office Christmas party will be covered, and following a recent Court of Appeal decision, the after-party gathering too!!
Back in 2016 employer’s liability seemed somewhat limited in Bellman v Northampton Recruitment Ltd. In this case one of the employer’s directors assaulted an employee, leaving them brain damaged. This altercation took place at 3am, after some of the party goers decided to go onto another establishment once the official work party had finished.
The assaulted employee claimed that the employer was vicariously liable for the actions of the director, and claimed damages. The claim for vicarious liability was originally dismissed by the High Court. It was held that “a line could be drawn under the evening’s events … What followed later arose in the context of entirely voluntary and personal choices by those present to engage in a heavy early hours drinking session.”
However, the High Court decision was overturned by the Court of Appeal this year, and it was held that there was in fact a sufficient connection between the job and wrongdoing, meaning that the Company should be vicariously liable. In the Court of Appeal’s view, the attack arose out of a misuse of the position entrusted to him as managing director. It was also relevant that the drinks occurred on the same evening as the work event which was paid for and orchestrated by the managing director.
This most recent decision makes it clear that if one employee harasses another employee in an organised social gathering outside of work (like an office Christmas party or even the after-party), then this could open a claim against both the employer and the individual employee responsible for the harassment.
- Set ground rules: make it clear to staff before the Christmas party that the employer’s policies on bullying, harassment and discrimination still apply at the party, whether it takes place in normal working hours or not.
- Before the event, draw attention to the fact that the party is an extension of the workplace and that they are representing the business, especially in terms of how they behave towards third parties and their colleagues.
- Provide a clear policy on the standards of behaviour expected at the Christmas party and other social events, and on what kind of behaviour is deemed unacceptable.
- Advise managers to get involved if matters get out of hand.
- Control the amount of free alcohol on offer, and ensure that there are plenty of soft drinks available.
- Encourage employees who overstep the mark to apologise at the earliest opportunity.
- Implement and enforce a clear equal opportunities policy, making explicit reference to events outside of work.
For more information on employment law issues relating to office social occasions, contact Ellen Goodland in our Employment & HR team on:
01793 847 781 Email us
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