Christmas – one of the most beloved holiday seasons of the year. The time when children get excited about gifts and snow, adults prepare to shop-‘til-they-drop and companies host lavish parties for their employees, celebrating another profitable and successful year.
Everything is wonderful, and nothing could possibly go wrong. Or… could it?
While the prospect of gathering all staff members at a festive company bash certainly seems exciting and beneficial to morale, there are still a few considerations employers should be mindful of as party hosts – including a recent piece of legislation which places yet more obligations on them to prevent sexual harassment “in the workplace”. If it’s at a party at an external venue – then it’s not the workplace! we hear you cry…..unfortunately, technically that is not what the law says. Please read on….
When planning Christmas get-togethers, employers should firstly remember that they are liable for the acts of their employees committed “in the course of their employment”, which can include work social events outside of contractual hours. The case of Bellman v Northampton Recruitment Limited (NRL) [2018] serves as a stark reminder of this possibility. The employer, NRL, had organised a Christmas party for its staff. Following on from the festivities there, half of the guests moved to a different venue to continue celebrating. Taxis were arranged and drinks were paid for by NRL accordingly. At some point, the conversation between NRL’s managing director – Mr Major – and the employees took a turn, and work became the main topic. An alcohol-fuelled disagreement followed, as Mr Major had begun lecturing NRL’s employees. Mr Bellman, a sales manager at NRL, challenged Mr Major who proceeded to punch him twice resulting in Mr Bellman being knocked to the floor. Mr Bellman had his skull broken and suffered traumatic brain damage. He then successfully sued NRL for personal injury.
The takeaway from the above case for employers is that non-work context can be quickly changed into a work discussion by a senior employee exerting managerial authority; add some disputes over management decisions and some alcohol and it’s a recipe for disaster – this applies as much to harassment claims in the Employment Tribunal as to personal injury claims.
However, employers’ liability unfortunately does not end there. It is now expected –- that they take such steps that are reasonably practicable to prevent unacceptable behaviour taking place, such as:
- Employees should be reminded that there is zero tolerance for inappropriate behaviour at such events, and that if it occurs, it would be dealt with as if it had occurred during normal work time. Similarly, staff should be advised that anyone not wishing to partake in the celebrations should not be forced to do so, as this could be seen as harassment.
- Taking care when planning events –details such as the venue, menu and entertainment choice should be carefully considered to avoid offence. Organisations should ensure that the venue is accessible by any disabled employees and that any allergies or religious considerations are appropriately handled when it comes to the meal and drinks menu. Games and competitions should also be considered – the content of card games, for example, may be wholly inappropriate. Raffle competitions, as another example, could have prizes that some find offensive or insulting.
- Being mindful of the potential for unlawful harassment, which is broadly defined as “unwanted conduct which violates a person’s dignity or creates an intimidating, hostile, degrading or humiliating environment”. Monitoring or otherwise seeking to ensure that alcohol is served in moderation, discussions on repertoire with any third-party entertainers and speakers and taking reasonable steps to prevent sexual harassment of staff (such as reminding employees and all other attendees of the company sexual harassment policy) should be at the top of each employer’s agenda for the celebration.
- Investigating swiftly and thoroughly any incidents that may then occur notwithstanding the measures taken to prevent them. The pretext that a celebration is taking place and things “just got a bit out of hand” is no longer a valid excuse or justification for someone’s unlawful actions. Failure to ensure appropriate procedures are in place to investigate such matters leads to risk of employers being hit with claims for unfair dismissal based on unduly delayed disciplinary investigations or further acts of unlawful discrimination.
- Conversely, employers should ensure they and other staff do not castigate another employee simply because they won’t partake in after-work drinks or team-building activities. There is case law to indicate that compelling or pressurising someone to join in festivities 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.
Most employers are now aware that certain obligations on employers changed quite significantly recently. On the 26 October 2024, it became a legal requirement by virtue of the Worker Protection (Amendment of Equality Act 2010) Act for employers to take proactive reasonable steps under this positive and required duty to protect employees from sexual harassment. In essence, employers must show they are complying with the new duty by doing such things as:
- Undertaking regular risk assessments to identify when it may occur and assuage the risks to ensure sexual harassment is prevented before it occurs;
- Having a clear and specific anti-sexual harassment policy (or Introducing wording in relation to sexual harassment to their existing policies) taking a zero tolerance approach.
- Training, training and more staff training !
- Ensuring you have a robust reporting and investigative process in place in the event of complaints to enable them to be dealt with quickly and comprehensively.
A key consideration coming from the introduction of this requirement on employers is the fact that their duty to prevent sexual harassment extends beyond its own employees, to the conduct of third parties and clients, within as well as outside of work premises. It is, therefore, also key to try to ensure employee safety when they conduct their work duties outside the company’s offices.
This cautionary tale is – in truth – nothing new however, as a 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. The most common reasons for disciplinary action were fighting (29%) threatening behaviour (19%) 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.
Accordingly, whether tis the season to be jolly – or not – it is vital employers try to prevent sexual harassment in compliance with the new law, as failure to do so leaves them liable for employment claims and hefty fines.
So, in order to ensure celebrations remain joyful, and the spirit remains festive, please give some prior consideration to the celebrations this Christmas season with your staff and have a very Merry Christmas, one and all!