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Christmas Entertaining: Pitfalls for the Unwary

Christmas and New Year staff parties are intended to be a source of good fun, a reward for a year gone by. But for employment lawyers they are all too often also a source of new work.

The classic problem is the employee who oversteps the boundaries of good taste and acceptable conduct, and strays into the arena of harassment or discrimination.

Discrimination is unfavourable treatment of an individual or a group based on what is known as a “protected characteristic”. These characteristics include age, sex, race, disability, pregnancy and maternity, sexual orientation, marriage and civil partnership, gender reassignment and religion or belief.

Harassment is unwanted conduct that relates to a protected characteristic, and which has the purpose or effect of violating an individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.

How is this the employer’s problem?

An employer could be forgiven for thinking that an employee who behaves in such a way is responsible for their own behaviour, and they would be right – except where the conduct takes place in the course of the employment. This is known as vicarious liability and means that whilst the acts were those of the employee (and they may well be liable as an individual) the employer is also liable and could face action from the harassed or discriminated against employee.

From the alleged victim’s perspective, it may be more attractive to pursue the employer, who may have deeper pockets, rather than take action against an individual fellow employee.

Surely conduct at a staff party isn’t “in the course of employment”?

Where the incidents of harassment take place outside the workplace, you may think that, as an employer, you are “safe” from any potential vicarious liability. However, acts can still be classed as taking place in the course of employment, even if not part of the usual working day and even if not at the usual business premises.

It is well established that a work-related social event, such as the Christmas party, falls into this category so employers can’t afford to turn a blind eye to problematic conduct.

Even if the employer is satisfied that the alleged acts of harassment were not carried out during the course of employment (perhaps the celebrations carried on at another venue not connected to the party, although this is by no means a straightforward cut off for the employer’s liability) there could still be considerations for the workplace. For example, the victim of harassment may be scared to work with the alleged perpetrator, or may be subject to less favourable treatment at work as a result of having rejected or submitted to the harassment, if the issue was with their manager.

The employer may also need to think about the effect on other employees. Especially serious conduct may require the employer to take steps to protect those other employees.

What can an employer do to protect themselves in advance?

We’re not suggesting the Grinch inspired option of cancelling all seasonal festivities, but there are some steps an employer can take.

An employer will have a defence if it can show that it took all reasonable steps to prevent the alleged perpetrator from doing the alleged act of discrimination. This will vary from case to case but factors that a tribunal may take into account include:

• Does the employer have a written equal opportunities policy?
• Has the policy been communicated effectively to staff?
• Have staff been trained on the policy and its implications?
• Is compliance with the policy monitored and breaches acted on?

What should an employer do if it finds out there has been a problem?

The employer will need to start by conducting an investigation. Depending on the results of that, the employer may need to commence disciplinary proceedings against the employee.

It is possible that the alleged victim of the harassment may not want to make an official complaint. It’s also possible that the employer finds out about the incident from a third party and has to make a decision as to how to proceed before the alleged victim has approached the employer at all.
Whilst a confidential discussion with the alleged victim would be a good way to start and may well help the employer decide how to proceed (especially if the third party witness has misinterpreted events) the employer must also hold in the balance the rights of the alleged harasser. It is written through an employment lawyer like a stick of rock that the outcome of a disciplinary investigation and hearing should never be prejudged, and an employer must bear this very much in mind as they move through the process.

Ho ho no?

Provided the employer has already well embedded appropriate policies into its workplace practices, and maintains records of the steps it has taken, there is no reason not to look forward to the Christmas party.

For everyone involved the simplest advice is perhaps to enjoy the event, but just not to forget that you all want to be back at work together “the morning after the night before”.