News that a former employee was found to be wrongfully dismissed for not being ‘fun’ at work has piqued the interest of employees and their bosses worldwide.
As we emerge from the less social days of the pandemic and broach work socials for the first time in a while, the French courts have recently ruled that a man who was sacked for not partaking in the drinking and promiscuity culture at work was wrongfully let go. The reason given for his termination was “professional incompetence”, but when investigated, the court was told this was based on his refusal to participate in social activities with his colleagues.
The ‘fun’ in this instance related to seminars and weekend excursions which involved excessive alcohol consumption, bullying and promiscuity. The court decided this employee was not obliged to join in and his freedom of expression included his right to sit on the side-lines whilst colleagues socialised with each other.
This being the case, if an employee decides they don’t want to join the party, then their colleagues should be reminded to just leave them to it. They should not be chastised or pestered or – heaven forbid – dismissed for being a Grinch. Compelling or pressurising someone to join in could be construed as bullying, or if their refusal to get involved is because of a protected characteristic such as race or religion; it could be classed as discriminatory behaviour.
Conversely, as we enter into the full swing of Christmas party season, employers who are not cognisant that they can be liable for the acts of employees committed “in the course of their employment” which can well include work social events outside of work hours, such as the staff party – need to be reminded of this, and warned of the possible consequences…
Such was the case which came before the Court of Appeal in respect of a boss who punched a staff member following a yuletide party in Bellman v Northampton Recruitment Limited (NRL) [2018]. The facts in that instance were as follows: after a work Christmas party organised by NRL half of the guests decided to continue the revelry at a hotel. NRL paid for taxis to transport them to the hotel and for the majority of drinks. The conversation turned to work, and there was a disagreement.
Mr Major, NRL’s managing director, began to lecture the employees on how he owned NRL and made the decisions. Mr Bellman, a sales manager at NRL, challenged him, at which point Mr Major punched Mr Bellman twice, the second time knocking him to the floor, breaking his skull and causing traumatic brain damage. Bellman sued for personal injury, and was successful*.
This case serves as a stark reminder that a non-work context can be quickly changed into a working environment by a senior employee exerting managerial authority – this applies as much to harassment claims in the Employment Tribunal as to personal injury claims.
Further and this year in particular; we can identify the potentially very dangerous territory here for employers given the almost perfect storm scenario which combines:
- A festive celebration
- Employees not having been able to socialise properly for almost 3 years; and
- Significantly increased sexual harassment knowledge in the post #MeToo era.
Accordingly, it is not really opting out which concerns us in the UK, however, but quite the opposite, and especially at a time of the year when jollity is endemic and employees have been prohibited from getting together for a party for some years. The problems arise when the fraternizing colleagues overstep the mark.
A recent report by the CIPD identified that 1 in 10 workers knew of someone from their organisation who has either been dismissed or disciplined for inappropriate behaviour at the staff Christmas party. Public sector workers are generally more aware of such action and twice as likely as private sector workers to report that people have been disciplined or dismissed for sexual harassment.
The most common reasons for disciplinary action were fighting (29%) or threatening behaviour (19%). Other commonly reported reasons for disciplinary action or dismissal included sexual harassment, (17%), bullying (12%) and ‘other inappropriate behaviour’ (7%), which has included unorthodox use of the office photocopier, amorous activity on company premises or insulting the boss.
Employers should therefore take such steps as are reasonably practicable to prevent unacceptable behaviour taking place:
A sensible starting point is to dismiss from the outset the notion that ‘anything goes’ at the office party. Staff need to be reminded in advance of any festivities that inappropriate behaviour will be dealt with in the same way as it would be during normal work time. Employees should also be reminded that those who wish not to get involved in work frolics should be let alone and not harassed about it (!)
Care should be taken over such points of detail as the venue, menu and entertainment, which contain potential traps for employer. Matters such as the choice of venue, for example, may carry the potential for a complaint of unlawful discrimination. Check that the venue is accessible to any disabled employees.
The menu and/or party games can also cause difficulties. Employees who observe religious rules/conventions involving not drinking may feel unable or extremely uncomfortable in attending an event where alcohol is served and drinking is openly encouraged (especially where it is to excess) or even distributed as prizes. Even the seemingly innocuous raffle may cause problems unless there is a variety of prizes. Keep an eye on the amount of alcohol which is drunk and ensure that non-alcoholic drinks are served. Ensure that there is no peer pressure on employees to drink.
The party and its aftermath could lead to claims of unlawful harassment, which is defined broadly as “unwanted conduct which violates a person’s dignity or creates an intimidating, hostile, degrading or humiliating environment”. Employers should vet external entertainers (eg, comedians) and speakers to ensure that their comments and acts do not constitute harassment – which covers “words spoken”. There are potential health and safety considerations, particularly if the office party is held on the employer’s premises. The misuse of alcohol could be an aggravating factor in accidents in the workplace.
Perhaps coincidentally, absenteeism increases in the run-up to Christmas. Employers need to ensure that staff are reminded of their obligations in relation to attendance and unauthorised absences should be dealt with as a disciplinary manner.
Finally, if incidents occur it is obviously imperative that they are investigated promptly and thoroughly. The intervention of the Christmas break will not justify any failure to follow normal procedures and a failure or a delay in doing so, exposes the employer to the risks of claims for unfair dismissal based on delayed disciplinary investigations or further acts of unlawful discrimination if a prompt investigation into unlawful harassment does not take place.
So please, this year… have a Merry Christmas – not a Messy Christmas.
This article appeared in LondonLovesBusiness, Business Leader, PA Life, HR News and EPrivateClient.