The Christmas period can be an enjoyable time for employees in the workplace with social events, heightened spirits and a slowdown in the pace of work. Work Christmas parties are a good way to boost staff morale and make employees feel appreciated. However, here are a few important legal factors to bear in mind as the festive season approaches:
Health and safety implications
Employers have a general duty under the Health and Safety at Work etc. Act 1974 to ensure, as far as is reasonably practicable, the health, safety and welfare at work of their employees.
This duty is likely to extend to social events associated with work which are organised or hosted by management. Where events are organised at commercial places of entertainment, the primary responsibility for health and safety rests with the proprietor. Nevertheless, employers should take steps to ensure the party venue does not present any health and safety risks.
In addition, consider matters such as how employees will get home after the party. If they will not be driving, advise your employees to ensure they have planned to get home, for example by public transport or licensed taxi.
There are several possible discrimination aspects to consider when organising and holding a Christmas party.
Firstly, discrimination, harassment and victimisation on grounds of religion or belief are unlawful. Christmas parties could discriminate against non-Christian staff if their religious festivals are not also celebrated. However, it seems unlikely that an Employment Tribunal would decide that holding a Christmas party constitutes religious discrimination. This is because Christmas parties are not about celebrating religion. Instead, they are about improving staff morale and thanking employees for all their hard work over the previous year.
Secondly, be careful to take the different religions into account when planning the event. Is the venue suitable and the date acceptable? Is the chosen theme or entertainment likely to cause offence to anyone? Will a choice of non-alcoholic drinks be provided? Does the menu accommodate dietary requirements?
Next, the venue should also be easily accessible and not put disabled employees at a substantial disadvantage.
Finally, there is nothing to stop you imposing a dress code for the Christmas party, but it should not discriminate on religious grounds.
The claim most likely to arise as a result of a Christmas party is for harassment, usually sexual harassment.
An employee harasses another employee if they engage in unwanted conduct related to a protected characteristic or of a sexual nature, and the conduct has the purpose or effect of violating the other employee’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that other employee.
Sexual harassment includes, but is not limited to, unwelcome sexual advances, requests for sexual favours, engaging in other unwelcome verbal, non-verbal or physical conduct of a sexual nature and subjection to obscene or other suggestive comments.
Employers are liable for the discriminatory actions of their employees carried out ‘in the course of employment’. Any act committed by an employee in the course of their employment is to be treated as also being committed by their employer – regardless of whether the employer knew or approved of the action.
However, employers have a defence if they can prove that they took all reasonable steps to prevent the discrimination or harassment from occurring. This is known as the ‘statutory defence’.
Employers who wish to be able to take advantage of the statutory defence should:
- Ensure that up-to-date equal opportunities and anti-harassment policies are in place and that they cover work-related events that take place out of office hours or off the premises.
- Make sure that the policies have been distributed to all employees and that they are made aware of and understand the issues covered by the policies.
- Ensure that all employees have received training on equal opportunities and the types of behaviour that constitutes unlawful discrimination and harassment.
- Send a statement to all employees in advance of the Christmas party, setting out the standards of behaviour and conduct expected from them, what types of behaviour are not acceptable and the consequences of inappropriate or unlawful conduct.
- Designate certain senior (sober) members of staff to monitor events on the night to ensure that things do not get out of hand.
- Bear in mind their duty of care and consider limiting the number of free alcoholic drinks and take steps to send an employee home if their conduct gets out of hand.
The morning after
If an employee fails to attend for work the day after the Christmas party, employers are entitled to treat the unauthorised absence as a disciplinary matter. However, it is more likely that an employee will phone in sick rather than simply failing to attend work. While an employer might suspect that an employee is malingering or hung over, it is important to clarify the reason for the employee’s non-attendance before acting against them.
Finally, it is important to ensure that all employees are treated consistently to reduce the risk of any potential claims for discrimination or constructive unfair dismissal.