With the end of year party season now underway – and now due to finish in January on account of weather and industrial action – employers need to be aware of the potential pitfalls that can accompany the festivities.
In this article we set out some key tips to help employers deal with problems resulting from the festivities, including how best to handle employee bad behaviour and the need to ensure gatherings are safe.
The end of year party – spotting the issues
It is a well-known fact that alcohol consumption can lead to people losing their inhibitions and behaving in a way that may be out of character. As the end of year party evening wears on, even the most professional of employees can find their guard slipping.
Issues to look out for include:
Gossiping and indiscretion – which could lead to discrimination and harassment allegations, breaches of business confidentiality, the use of inappropriate language and line managers making hasty promises (for example, in relation to pay rises).
Behaviour contrary to business values and culture – employees acting in an inappropriate, aggressive, or embarrassing manner, which could amount to gross misconduct and/or damage the individual’s professional reputation and that of the company.
“Pulling a sickie” – employees not turning up to work the day after the end of year party, asserting that they are genuinely unwell rather than nursing a self-inflicted hangover.
Where does responsibility lie for behaviour at social events?
Employers are responsible for anything done by their employees in “the course of their employment”. An employer can be liable whether the acts committed by an employee were within the employer’s knowledge/approval or not.
“In the course of employment” covers work-related social events such as end of year parties. In the case of Stubbs v Chief Constable of Lincolnshire Policy and Walker, the employer was vicariously liable for sexual harassment which occurred during after work drinks.
Similarly, in the case of Livesey v Parker Merchanting Limited, the employer was vicariously liable for sexual harassment which took place after a work Christmas party in a taxi on the way home.
The employer in Bellman v Northampton Recruitment Ltd also found itself vicariously liable for a drunken violent attack on an employee by the managing director following the work Christmas party. Despite the fact the attack took place during an “impromptu drink” in the hotel in which employees were staying, rather than at the party, the Court of Appeal held that it was “in the course of employment”.
There was a sufficient connection between the managing director’s role and the attack, particularly as he was lecturing a group of employees about work matters when it took place, and therefore asserting the authority of his senior role within the employer.
An employer will however, have a defence to vicarious liability if they can show that they have taken all reasonable steps to prevent the employee from committing an act of discrimination and/or harassment. This can be a notoriously tricky defence to run, but the steps that an employment tribunal would expect to see are all examples of good employee relations for employers to follow. These would include:
responding and dealing with complaints and grievances in a timely and efficient manner
taking extra care and vigilance where you are aware of particular risks e.g. the excessive consumption of alcohol
delivering appropriate and effective training (including regular refresher training) to all levels of the business
ensuring there are well drafted equal opportunities and anti-harassment policies in place.
The reasonable steps defence does not go so far as to require employers to ensure employees have signed declarations that they will not behave inappropriately at events.
However, to minimise the likelihood of problems, employers could risk assess the event and venue, and gently remind the workforce of behaviour expectations while they are getting into the festive spirit.
Dealing with misconduct
If informal complaints are made or grievances raised following a work event, they should be taken seriously and handled promptly. The complaint could be sensitive in nature if any allegations of sexual harassment are involved, for example, and steps should be taken to support those raising such complaints.
You may need to discuss with the employee if they would feel more comfortable working separately from the person they have accused of harassment while the investigation and/or grievance process is ongoing. Additional support could include referring an employee to an employee assistance programme, or discussing other temporary changes to their role, such as a different line manager.
If there are allegations of a criminal nature, an assessment should be conducted to determine at what stage it may be appropriate to refer the matter to the police.
If the police become involved, an employer does not need to suspend their own internal investigation. The requirements of fairness and the duty of trust and confidence which impacts the employment relationship would continue to apply during any police involvement. That is also the case if a report has been made to an external regulator, such as the Financial Conduct Authority or the Solicitors Regulation Authority.
Further, employers have a duty to ensure that employees who complain about colleague misconduct are not victimised as a result of making the complaint, such as being downgraded in their appraisal, awarded a lower bonus, or given lower quality work.
The end of year party provides a great opportunity to celebrate employee contributions over the past year, and bond as a collective organisation.
A minority of employees may still let themselves and their company down at such events and previous caselaw demonstrates the potential liability for employers if that occurs.
Nevertheless, the risk of employment claims (such as constructive dismissal, harassment and discrimination) can be minimised with sensitive communication and effective management of any conduct which oversteps the mark.
Need more information about the above people and legal expertise? Talk to one of our lawyers: +44 (0)20 7628 2000
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