HM Insights

Tis the Season.. for employers to be aware of common festive pitfalls

While it may indeed be the most wonderful time of the year and a time for goodwill, pigs in blankets and Buddy the Elf, for us employment lawyers the festive period is often also a time for an increased level of enquiries surrounding a number of common issues.

The #MeToo campaign and the publicity surrounding it has contributed significantly to a shift in public perception around workplace behaviours and has encouraged individuals to come forward and speak out against unwanted conduct. The relaxed atmosphere - and the increased alcohol consumption - which for many comes hand-in-hand with the festive period can often lead to a number of issues, one of which is an increase in sexual harassment complaints.

As with most employment law matters, prevention is better than cure and while sexual harassment claims are by no means the only issues which stem from Christmas parties, they are common. As a result, we encourage our employer clients to take a few precautions to avoid having to add dealing with grievances and disciplinaries to their list of January blues.

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Christmas parties

The Christmas party is an event which many employees look forward to and it provides an often rare opportunity to relax and enjoy colleagues' company, to reward employees for the year past and to look forward to the year to come. While many parties pass with no more concern than dodgy dance moves, it has been reported that as great a proportion as 90% of employers have had to deal with an employment problem stemming from a Christmas party.

Many employers are unaware that even parties which take place away from the workplace and out of working hours can result in a legal responsibility for the actions of their employees. Given the potential liability for an employer if such a claim is brought, as well as the risk to morale and reputation of such behaviour taking place, we encourage employers to be pro-active and factor the below guidance in their preparations for the festivities.

The preparations

Ensuring that the organisation's policies are up to date should be as much a part of the preparations for the Christmas party as booking the venue and deciding on the menu is.

Key policies in this regard relate to alcohol/drug consumption and sexual harassment. Employees should be reminded of these policies and encouraged to re-familiarise themselves with them at regular intervals. They should be aware that the normal rules of gross misconduct apply in all situations which could be considered an extension of the workplace, including the Christmas party.

These policies should clearly set out the way in which staff can raise concerns and detail the potential consequences for an individual who breaches any requirements of the policy. It should be clear that a failure to abide by to the policy will amount to a disciplinary matter and could, in serious cases, lead to dismissal.

It is helpful to remind staff of the existence of these policies in the lead up to the festive period. Many employers opt to send out communication to all staff in early December regarding acceptable standards of behaviour both in and out of the workplace. It is vital to ensure that employees understand the difference between banter and more serious behaviour which may have the effect of violating the dignity of another person, even where that behaviour is not targeted towards them.

These issues should be addressed throughout the year by the provision of regular training sessions and communication with staff. While these issues are more prominent in December, they are equally vital all year round and every step should be taken to ensure this is understood by all staff.

On the night

During the party itself it may be sensible to appoint a senior (and sober) member of staff to monitor the party and those attending. This not only ensures that swift action can be taken to deal with any member of staff who appears to be acting inappropriately, but also ensures that there is a member of staff available to deal with any other emergencies which may arise.

Perhaps most obviously, it is suggested that employers consider the amount of free alcohol, if any, that they wish to provide for staff. While a drink or two is a good way to reward staff for all their hard work over the year, providing too much free alcohol may result in a number of problems. Where a vast amount of free alcohol has been provided by the organisation, an employer may not be entitled to hold employees accountable for inappropriate drunken behaviour. It is also good practice to ensure that plenty of food and soft drinks are also available.

If a member of staff raises a complaint of unwanted behaviour during the party they should be reassured that this will be dealt with in the appropriate way in early course. For the avoidance of doubt, no disciplinary action should be conducted during the party itself. It may, however, be appropriate to send the employee involved home but this should be considered on a case-by-case basis.

Finally, given the duty of care which employers have to their staff, efforts should be made to ensure that all staff have a means of getting home safely. This may involve the provision of a bus, or simply ensuring that the party is at a location which is easily served by taxis/public transport after hours.

The aftermath

Where there has been an incident of this sort during the Christmas party, employers are well advised to follow their usual disciplinary process and ensure that any complaint is investigated thoroughly before any action is taken. Complaints should be dealt with swiftly and not left to fester over the Christmas break.

It is not necessary to start a disciplinary procedure for every little incident. If, for example, someone simply got a little carried away with the Christmas cheer, it may be considered appropriate to just have a quiet word later on. That said, serious issues of inappropriate behaviour or misconduct should be followed up properly and thoroughly.

Where such a complaint is made, employers should address this quickly and in line with their grievance policy. It is important not to dismiss serious misconduct or inappropriate behaviour as a one-off event, or justify it as an alcohol-fuelled misunderstanding. Unless a formal investigation has taken place, it cannot be shown that all possible steps to prevent ongoing harassment have been taken, which in turn makes it difficult to defend an employment tribunal claim for a failure to protect employees from harassment.

Secret Santa

Many workplaces choose to run a Secret Santa in the lead up to the Christmas break. When correctly executed, Secret Santa can be fun and a great teambuilding exercise but employers must ensure that their employees are aware of what is and isn’t appropriate when taking part. In our experience, many employers are unaware that they could potentially be held liable if an employee receives an inappropriate gift from their Secret Santa, even when this is organised by the employees themselves.

While to some, certain gifts could be well intentioned funny gifts, there is the potential that they can instead leave the recipient embarrassed and cause irreparable damage to employee relations and lead to heightened workplace animosity. Tribunal claims have also been raised as a result of Secret Santa gifts which were claimed to be discriminatory.

Accordingly, employers should ensure that clear boundaries are in place in terms of what sort of gifts are appropriate in the workplace, as well as a clear spending limit to ensure that everyone who wishes to take part is able to.

While a Secret Santa policy may be considered excessive, again, it is certainly good practice to send a guidance email/memo to remind employees of their obligations in terms of avoiding discrimination, bullying and workplace harassment which apply not only to Secret Santa, but any workplace gift giving which takes place throughout the year.

Get in touch

Having said all that, we in the Employment Team here at Harper Macleod wish everyone a very merry Christmas party (within the acceptable boundaries)!

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