Employment: It's Christmas time - there's no need to be afraid...

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It's Christmas time There's no need to be afraid

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It's Christmas time There's no need to be afraid...

So the office party season is upon us once again‌ Often a fertile breeding ground for over-drinking, boisterous behaviour and ill-advised amorous advances, the Christmas party provides a host of potential pitfalls for employers.

We therefore thought a cautionary note may be in order to ensure the after effects of your party are limited to those that can be remedied by a Berocca and a greasy breakfast.

John Skelly Partner | Employment john.skelly@laytons.com +44 (0)20 7842 8000

It's Christmas time | December 2016

Different setting, same rules The safest approach is to consider the office party as an extension of the workplace and remember the employment relationship subsists regardless of the social nature of the occasion. This is best illustrated by a Court of Appeal decision in which the promise of a pay rise made at an office party was considered capable of amounting to a contractually binding promise!

Be mindful that actions of employees during the party are likely to be deemed to be “in the course of their employment” and therefore could be considered actions of the employer.

So when the drinks start flowing and inhibitions fall away, an employer’s liability for its employees’ conduct does not.

So every unwelcome lunge or grope at the party may be treated as being the action of the employer as well as the actual groper. And when it comes to deciding who to bring a claim against, as the option with deeper pockets, the employer will almost invariably be the preferred option.

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It's Christmas time | December 2016

Mistletoe and folly One of the main pitfalls is the threat of claims for sex-related harassment. This is “unwanted conduct” relating to a person’s sex and/ or “conduct of a sexual nature” that has the “purpose or effect of either violating a person’s dignity or of creating an offensive, intimidating or hostile environment”.

It can range from an inappropriate joke to a serious sexual

A risqué comment, whether intended in jest or not, can also

advance. It can be a major “one off” occurrence or an

have decidedly unfunny outcomes. The city lawyer who

accumulation of more minor incidents.

quipped that a colleague had “great baps” was not smiling when the matter ended in Tribunal proceedings. The matter

For example, budding Secret Santas should be aware that

eventually settled for a sizeable sum and serves as a warning

the giving of inappropriate gifts can constitute sex-related

that misguided utterances can be costly for employers.

harassment. The notorious example is that of a partner in a city firm who presented an employee with a phallic-

Sex-related harassment also includes inappropriate

shaped festive chocolate, causing much embarrassment to

physical contact. A good rule of thumb is if the contact is

all concerned and committing an act of harassment in the

unwelcome, it may well constitute harassment. A lingering

process.

touch of the shoulder of an employee in a sleeveless dress has been deemed to amount to sex-related harassment as it transcended the boundaries of ordinary social contact.

Obviously context is essential when considering physical contact; however, the safest starting point is to assume that the office party is strictly a non-contact sport!

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It's Christmas time | December 2016

Managing the mayhem For those who do dare to party, it is not all bad news. An employer’s liability for harassment can be avoided provided the employer has taken all reasonably practicable steps to prevent the occurrence of the harassment. To demonstrate that such steps have been taken, we would recommend the following:

•

dispel all myths that “anything goes” at the Christmas

These simple steps should serve to limit both the scope for

party. Make employees aware of the standards of

problems occurring in the first place and the liability in the

behaviour expected and of the consequences of

event that an incident does occur.

inappropriate behaviour Despite its hazards, the Christmas party remains a fitting way •

refer employees to the company’s Harassment and

of generating good will and recognising the contribution

Equal Opportunities policy and gently remind them

made by employees throughout the year. With a sensible

that this will apply for the duration of the evening

approach, this yule-tide institution can continue to be enjoyed (and dreaded) by all for many years to come!

•

control the flow of alcohol and provide non-alcoholic alternatives. Most incidents occur when people get too drunk and nothing makes people more likely to over-indulge than an unlimited free bar

•

where entertainment or speakers have been engaged to perform or talk at the party, check in advance that their proposed pieces do not contain or constitute any form of offensive material

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Have fun and Happy Christmas!

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