We wish you a Merry Christmas, and a litigation free New Year?..
Office Christmas parties have a habit of keeping Employment Tribunals busy well into the New Year. One recent case, for example, involving an employee spotted entering a colleague’s hotel room after the party highlights just how far removed from the incident an employer can be and yet still become entangled in litigation.
In that case the employee informed her employer that she was pregnant some weeks later, which led to months of speculation and gossip as to the baby’s paternity.
The employee subsequently raised a grievance and brought a claim for unfair dismissal and harassment. At first instance the harassment claim failed and the unfair dismissal compensation was cut to reflect the fact the employee had apparently caused the gossip herself.
The appeal tribunal reversed that decision, finding that the employee had in fact been discriminated against and harassed on the grounds of pregnancy. It went further, finding that that the tribunal had been wrong to cut the employee’s compensation, and the fact that the employee had put her sex life into the public domain and therefore supposedly caused the gossip did not assist the employer’s case.
The basic position is that the office party is an extension of the office, so employers can be held responsible for employee actions as they can be in the office.
As with so much in this area of law, much will hinge on whether the employer behaved reasonably in all the circumstances. In the event that something does go wrong, the employer will need to show that they took all reasonable steps to prevent the incident happening, and this is where having good policies including grievance and anti-harassment comes into its own.
So just what can you do to protect yourself from an expensive trip to the Employment Tribunal in the New Year?
- Set the party boundaries. Inform staff that a minimum level of behaviour is expected, and remind them that the office grievance and disciplinary procedures apply equally to off-site events.
- Investigate. Much of the case law in this area has arisen where employers have failed to take complaints seriously. Complaints must be investigated in the same way as you would any other workplace grievance, with follow up disciplinary action if necessary.
- Step back. If an employee does overstep the mark, then wait until afterwards to have a word in the sober light of day. Though it may be appropriate to send an employee home, don’t be tempted to deal with the matter in detail at the time and particularly not in front of other employees.
- Managers beware. Avoid discussions about pay and performance, and do not make promises that may come back to bite you.
- Discrimination pitfalls. If the party is to be outside of work hours bear in mind that it may mean that employees with families cannot attend because of child care. And if partners are being invited include civil as well as married partners.
- Think about your menu. Ask beforehand of any dietary requirements. Certain groups will not eat some foods, and equally ensure that there is a good selection of non-alcoholic drinks available for those who do not drink. If you are providing a free bar, food is a good idea so that hopefully employees don’t get too the worse for wear; and keep an eye out for employees overdoing it.
- Journey home. You have a duty of care towards employees, so where alcohol is involved take steps to prevent them driving home, perhaps consider providing a coach if appropriate and have local cab numbers available.
- The morning after. If you are expecting staff to attend work, make it clear in advance what will be tolerated in terms of absence and latecomers. If you do expect employees to turn up to work, inform them of the consequences of failing to attend.