The festive season can be fraught with issues for the unsuspecting employer. The vast majority of employers will testify to the fact that they have faced issues arising out of employee behaviour at this time of year (particularly in relation to the office Christmas party).
Most commonly issues arise relating to complaints of sexual harassment or religious discrimination or, from employee misconduct (especially whilst under the influence of alcohol) or poor attendance (particularly the morning after the night before…)
To help you manage this, we have set out below our top ten tips for avoiding HR issues at this time of year:
- The party invitation – By all means encourage employees to attend the office party or participate in other Christmas activities. They can be a great morale booster for your staff. However, do not pressurise them to do so. Some employees may not want to attend for religious reasons; others may not be able to do so due to childcare or other caring responsibilities. Undue pressure on employees to attend or ostracising them if they do not do so could leave you exposed to discrimination or harassment complaints.
- Secret Santa – If you choose to run a Secret Santa, make sure all staff understand that not all gifts are appropriate in a work context; for example, lingerie or racy calendars (whether male or female) would not be appropriate and could leave an employer exposed to sexual harassment claims.
- Bad Behaviour – Employees need to understand that the office party or team lunch is still a work-related activity; it is effectively an extension of the workplace, so employees need to make sure they behave appropriately. Employers should be clear with employees about the standards expected of them at these events.
For example, in one case, an employee got extremely drunk at the office party and told one of the directors to “stick his f****** job up his ar*se”. He was dismissed for gross misconduct; not unsurprisingly, his claim for unfair dismissal failed.
You should also remind them that they must comply with your policies on equal opportunities and harassment at these sorts of events; sexist, racist, or other discriminatory comments based on sexual orientation, age, disability, religion etc will not be tolerated. Any breaches of these standards could result in disciplinary sanctions.
At the risk of sounding like a Scrooge, setting clear expectations on employees can prove invaluable in protecting legal your position should an issue arise.
- Alcohol – You should explain to employees that excessive consumption of alcohol (and the associated bad behaviour it often brings) will not be tolerated. Often alcohol consumption can lead to disputes, bad language or even physical fights. Employees may need to be reminded that this is unacceptable and, even if it happens outside of work hours, could result in disciplinary action against them. There have been several cases where employees have been fairly dismissed as a result of misconduct at the Christmas party; for example one employee who was dismissed for getting involved in a “wrestling match” with one of his colleagues (although he later tried to downplay the issue as a “play fight”), or the case of another employee who was dismissed after punching a colleague.
As an employer, however, you also have a responsibility for your employees; maintain a free bar for hours on end may well be seen as irresponsible in the event that it leads to employee’s behaving badly. In one case, three employees got into a fight after drinking for seven hours at a free bar provided by their employer. The tribunal found that their dismissals were unfair because the employer had effectively condoned their behaviour.
Of course, not all employees will want to drink (and some may have religious reasons for doing so); so ensure there are plenty of alternatives. Employers should make sure there is no pressure on them to do so to avoid potential claims for religious discrimination. It also goes without saying that any employees under 18 are not legally allowed to drink.
- Loose tongues – Managers need to be reminded to be careful about making promises about career prospects, pay rises, bonuses etc, especially whilst under the influence. There have been several cases where employees have tried to enforce promises made in the context of office parties. In one case, an employee alleged that his boss promised him at the Christmas party that his pay would double over the next two years. This “commitment” wasn’t honoured and the employee resigned claiming breach of contract. Luckily for the employer, in this case, the courts found that there was no intention for this to be a legally binding commitment and did not uphold the employee’s claim. To avoid this risk, we would strongly recommend that the best advice for managers is to steer clear of these sorts of discussions at any social events; if nothing else but to avoid the risk of any good intentions being misinterpreted or misunderstood.
- Office Gossip – Employees also need to be reminded that they need to be careful of what they say at (and after) the office party. In one case, an employee resigned and claimed constructive dismissal, sex discrimination and pregnancy discrimination after gossip started about her pregnancy as a result of events at the office party. The employee was apparently seen kissing another employee and leaving to go to a hotel room with him. When she later informed the employer that she was pregnant, speculation began about who the father of her child was. She subsequently resigned and brought claims at the tribunal. She succeeded in all of her claims against the employer.
- Tweeting, Instagram and Facebook – Employees may well decide to post comments about or photos of the party on social media; although no such cases have been reported, it is only a matter of time before this gives rise to an employment tribunal dispute, whether in relation to a picture illustrating some drunken antics or an ill-advised post commenting on their employer or another employee. Employers would be well advised to remind employees of the need to comply with their usual social media policies in this regard, particularly in relation to observing equal opportunities and diversity policies. It would also be worth reminding employees that any comments/posts that bring the business into disrepute will not be tolerated and could result in disciplinary action.
- Employee Safety – It is worth thinking about how employees will get home from the party –, you will want to make sure that employees have given some thought about how they will be getting back afterwards, whether that is by organised transportation or using local taxi companies. It would also be worth reminding employees of any policies you have in place regarding the use of company cars and that drinking and driving is, of course, against the law.
- Dealing with issues – If an incident arises at the party or any other work social event, do not be tempted to deal with it then and there. Depending on the circumstances, you may need to diffuse the situation, for example by sending the employee home. You should follow your normal disciplinary or grievance procedures and deal with any issues or complaints in the cold light of day (when everyone has had a chance to sober up and/or calm down).
- The morning after the night before… - If the function is taking place on a “school night”, make sure you have set clear expectations about attendance the following day. You should make sure that there are clear guidelines in place for absence or coming in late the following day and about what will and will not lead to disciplinary action. If you intend to relax your normal attendance requirements or reporting procedures, you should let employees know in advance, and make sure there is consistent treatment across the business. Of course, if it’s “business as usual” it is worth making this clear to them too. Bear in mind that any leniency in the past or by some managers but not others, could lead to a situation where an employee who is disciplined (or dismissed) as a result, claims it is unfair.
No doubt you will want to give employees a chance to “let their hair down” and get into the Christmas spirit, but there is a balance to be struck between having a good time and waking up with a legal hangover. Of course, the Employment Team is here to advise you on any issues you may face throughout the Christmas period, so please contact us if you need any help or assistance.