As the festive party season approaches, businesses are preparing for the annual office Christmas party as a way of thanking employees for their hard work over the preceding year. It’s certainly a chance for the team to let their hair down, engage with one another outside of the usual workplace surroundings and let off some steam, especially if there is a free bar! However, what may seem like harmless fun, can often lead to difficult issues for employers. The months surrounding the festive season are usually the busiest in an employment lawyer’s calendar flowing from issues following the office Christmas do.

Christmas parties therefore have the potential to cause resulting ramifications which employers can in some instances end up dealing with for weeks and months after the actual event. Employers can also be held vicariously liable for employees’ conduct which is deemed to have taken place ‘within the course of employment’ meaning that companies must approach the office Christmas party with thought and consideration on account of a number of potential issues.

Whilst most would agree that scrapping the Christmas party entirely is definitely not the way forward (no-one wants to be ‘bah-humbug’), there are certain steps that employers can take to ensure their business and employees are protected and that the risk of grievances, employment tribunal claims and vicarious liability is limited as far as possible.

Discrimination, bullying and harassment
Employers should ensure that all employees are invited to the office Christmas party as a matter of good practice and also to avoid any complaints of discrimination.

It is important to extend invitations to employees on maternity, paternity, adoption or other family leave and it may also be appropriate to invite those on sick leave depending on the nature of their illness. Don’t forget any employees who work predominantly or solely from home!

Employers should not insist that all employees attend the Christmas party. Where the party takes place out of office hours, employers should remember that employees may have other responsibilities which may prevent them from attending. Employers should be careful not to pressurise employees of non-Christian faiths into attending the Christmas Party if this would make them feel uncomfortable. Alternatively, you may want to consider re-naming the party to an ’end of year party’.

You might want to consider how staff will get to the party and get home safely afterwards. You should also consider whether it is appropriate/necessary to make reasonable adjustments for disabled employees.

The case of Nixon v Ross Coates Solicitors provides a perfect illustration of one of the many problems that can arise as a result of office Christmas parties.
In this case, an employee claimed constructive dismissal, sex and pregnancy discrimination and harassment after gossip arose at work about her pregnancy following events at a Christmas party, where she was seen kissing another employee and going to a hotel room with him. The HR manager knew of the employee’s pregnancy and began speculating with other employees about who the child’s father might be. The employee raised a formal grievance but it was not dealt with. On appeal, the EAT held that the Tribunal had been wrong not to make findings of sex discrimination, pregnancy-related discrimination and harassment.

Interestingly, the fact that the employee had put her sexual life into the public domain, and acted in a way which was bound to provoke gossip, did not assist the employer in relation to either liability or quantum.

This case should serve as a reminder to employers of the need to take precautions before, during and after office parties. If employers have policies and procedures in place which cover the key issues like discipline and grievance, bullying and harassment, and discrimination they will be in a much better position to handle these sorts of issues when they arise.

Staff should be trained on discrimination, harassment and bullying in the workplace and also sexual harassment to ensure staff understand what can potentially constitute harassment and where the boundaries lie. Christmas parties can result in claims of harassment including sexual harassment and resulting in grievances which in turn may result in the need for investigations and potentially disciplinary action. In order to protect from this, robust policies should be in place and should be communicated to staff effectively.

In Livesey v Parker Merchanting, an employee was harassed on the way home from a Christmas Party and was able to claim against the employer as the conduct was viewed as a continuation of harassment that had occurred earlier at the Christmas party.

Drugs/Alcohol
It is always helpful to remind employees of the relevant policies and procedures that are in place. While it is difficult to stop employees from over-indulging during the festive period, limiting the amount of free alcohol at the office party, providing non-alcoholic options and supplying enough food can all help minimise the risk of employees getting too merry. Remember to keep an eye out for office juniors as employers will need to take measures to ensure under 18’s are not drinking alcohol.

Employers should also be sensitive to employees who do not drink alcohol or who do not eat certain foods and ensure that the catering arrangements take account of different individual and religious dietary requirements.

Employers have a duty of care towards employees in the course of their employment and this duty extends to events like the office Christmas party. Employers should consider post-party travel arrangements for their employees to reduce the likelihood of employees taking undue risks during their journey home. For example, ending the party before public transport stops running, or encouraging employees to use local registered cab companies particularly where they have been drinking alcohol and cannot drive home.

Alcohol/drug use and/or fuelled behaviour is a common cause of disciplinary action following the Christmas party; therefore pre warning and educating the staff as to the company’s expectations of behaviour at the function and the potential consequences of misbehaviour is good practice. Emphasise that any incidents of bullying, discrimination, harassment, violence or other drunken behaviour will not be tolerated. It should also confirm how any unacceptable behaviour will be dealt with.

Venue, entertainment and speakers
Choosing the right venue for the Christmas party can be a huge responsibility. The main aim is to enable all employees to attend the party and enjoy the occasion.

Employers should consider hosting the party at a location that is accessible by all employees, suitable for employees of all ages, and provides facilities for those with a disability. Venues which might offend those of a particular religion or sex should be avoided as this could result in claims for discrimination.

Social Media
The increasing use of social media platforms and sites including Facebook, Twitter and TikTok add yet another risk associated with the office Christmas party. It is very tempting for users of these sites to upload photos of their colleagues often looking a bit worse for wear. This could raise data protection issues if those appearing in photos have not consented to their images being uploaded to social media sites. There is also a risk of employees posting inappropriate messages on social media sites which could cause offence or embarrassment to anyone referred to in the post or to the employer.

Such activities could damage the reputation of employees and the trust between colleagues, and in serious cases could bring the employer’s name into disrepute. Employers are advised to have social media policies in place and ensure employees are informed of the likely consequences or disciplinary sanctions which could result from inappropriate use of social media.
It is important to make sure policies and procedures are up-to-date and in place to provide transparency for employees on the do’s and don’ts concerning their personal and professional social/business media accounts.

Absenteeism
Employers should decide how lenient or not they will be in relation to lateness or absence for work on the morning after the office party. Employees should be made aware that absences will be monitored and that disciplinary action could be taken if they fail to turn up for work because of over-indulgence. Employers should also be vigilant of employees who arrive at work still drunk, especially if they will be driving or operating machinery as part of their job or there are other health and safety concerns.

Any complaints from staff should always be taken seriously and fully investigated. Full grievance, disciplinary, and capability procedures should be followed should it be necessary, irrespective of the time of the year.

Finally, have fun! It is a party after all.

If you are not sure if your policies meet the necessary requirements and think you would benefit from a free overview, please contact our Employment Team who can review your policies and if need be, draft bespoke policies tailored to you and your business.

We also deliver on-site bespoke training sessions on bullying, harassment and sexual harassment. For further details please get in touch.