Focuspoint

Office Parties – a survival guide...

In the run up to Christmas we thought it would be a good idea to examine the benefits and potential pitfalls for the unwary employer when organising and attending the traditional office Christmas party.  Office parties can be a great way to build teams and increase morale.  However, as alcohol is usually involved the employees attending these events often have reduced inhibitions and therefore the potential for misconduct of all kinds increases.  I am sure everyone can recall a story or rumour which has resulted from an incident at an office party which they have attended.  Whilst these incidents are often just innocent festive fun, some can lead to practical problems for managers and, at worst, potential Employment Tribunal claims.

Employees at Christmas parties can be involved in drunkenness, drug taking, fighting and sexual harassment.  Employees at all levels can become embroiled in this kind of behaviour.  The more senior the member of staff, the more serious any indiscretion can be treated as there is greater potential for the company to be brought into disrepute.

Employers are liable for the acts of employees done “in the course of employment”.  Normally it is easy for an Employment Tribunal to decide where this “vicarious liability” applies.  However, the dividing line becomes blurred when employees are attending work related social events. 

In relation to discrimination, Section 109 of the Equality Act 2010 states that anything done by an employee in the course of their employment is treated as also having been done by the employer regardless of whether the employees acts were done with the employer’s knowledge or approval.  It is therefore the safest course of action to assume that if you are thinking about organising an office party for your employees over the next month or so then their actions are going to be covered by the new Equality Act. 

Other factors which the Tribunal may take into account when deciding if employers are liable are as follows:

1.         Whether the incident took place on the employer’s premises.

2.         Whether the incident took place immediately after work.

3.         Whether the event was organised by the employer.

4.         Whether the victim or discriminator was “on duty” at the time.

This is not an exhaustive list and an employer’s liability for the acts of their employees will depend upon the specific circumstances of each case.  However, it is the safest course of action to presume that vicarious liability would be extended to the majority of Christmas parties.

There is however, a defence available to employers in the Equality Act if they can show that they took “all reasonable steps” to prevent the employee from doing a discriminatory act.  The following is a list of practical steps which employers can take to maximise their chances of being able to demonstrate to a Tribunal that they took “all reasonable steps”:

1.         Send a memo to all employees reminding them of the standards of conduct expected of them prior to the Christmas party.

2.         Do not encourage drunkenness by limiting the availability of free or reduced price alcohol.

3.         If an incident does occur, investigate it as soon as possible in the same way as if it had happened in the workplace using a fair and even-handed investigation and if necessary disciplinary process. 

4.         Ensure that your organisation has an equal opportunities policy and that this is reviewed on a regular basis.

5.         Ensure your employees have undergone training in relation to what constitutes bullying and harassment. 

Whilst there are a number of pitfalls surrounding office parties, the vast majority of them take place without incident and we would certainly not discourage you from organising one.  The law does understand that because alcohol is often involved there is a slightly different standard of conduct expected of employees and, therefore, Tribunals are likely to give some leniency to employers defending Tribunal claims in these circumstances.

If you would like more information on how your organisation could benefit from implementation of an equal opportunities policy or training on bullying and harassment, please contact Jenny Arrowsmith for more details of our training service T&E Advance. 

Briefcase news

The unintended consequences of Christmas parties were recently starkly outlined in the decision of Nixon -v- Ross Coates, solicitors and another [2010] UKEAT0108/10/0608.  In this recent case the Employment Appeal Tribunal (EAT) upheld the Claimant’s claim for constructive dismissal and ruled that she had been the victim of sex discrimination and harassment when office gossip arose in the workplace about the Claimant’s pregnancy being the result of an office Christmas party at a law firm.

The EAT found that at the party, a good deal was drunk by everybody and at the end of the party a group of employees decided to retire to a room at the hotel which the senior partner at the firm had booked for employees who could not get home.  More drinks were consumed and the senior partner fell asleep on the bed and “would not have had a strong appreciation for what was going on”.  The Claimant, who was in a long term relationship with a solicitor at the firm, had been seen kissing the IT Manager and they spent the night together in another hotel room.  The Claimant approached the senior partner in January to inform him that she was pregnant.  She claimed that within an hour of telling him, the HR Manager was making suggestions about the paternity of her baby which caused her considerable upset.

The Claimant contended that she could not return to work with the HR Manager who she accused of spreading malicious gossip about her, instead she suggested a transfer to a different office.  The employer then failed to deal with the Claimant’s grievance and repeated its insistence that she should return to work at the same office as the HR Manager. The EAT found that the gossip related to pregnancy and pregnancy related to the Claimant’s sex and that it met the definition of harassment as it constituted a course of unwanted conduct.  The EAT also upheld the Claimant’s claim of constructive dismissal.  It was also found that it was difficult to see a casual connection between the Claimant’s conduct on the night of the Christmas party and her subsequent resignation which meant that it will be unlikely that any reduction in compensation will follow for contributory fault.

Even though the employee had arguably put her sexual life into the public domain and acted in a way which was bound to provoke gossip this did not help her employer in reducing their liability or the value of the award against them.

Watch this space

There has been a mixed reaction to the recently reported Government proposal that the qualification period for claiming unfair dismissal could be extended from one year to two.  The clear implication of this change would be that fewer employees would have the right to bring an ordinary unfair dismissal claim. 

On the face of it this is good news for employers but would there be unintended consequences? 

It has been suggested by some that employees will try to turn what would be an unfair dismissal claim under the current system into a claim for discrimination or “whistle blowing” in order to get in front of a Tribunal.  Claims of this nature are by definition more complicated and therefore costly to defend for employers.  They also raise the stakes as compensation is uncapped in these types of cases.

The change might also mean that a poor appointment is allowed to continue because the more pressing daily demands on a small business would get in the way of addressing the same issue.  This change would mean that the law would revert back to the position around 10 years ago.  It is suggested therefore that this would mean that rather than dismissing employees at about 11 months, employers would begin to dismiss people at about 1 year and 11 months which was the case previously.  A decision about the suitability of someone’s employment is in everyone’s best interests to be made sooner rather than later and any change in the law which is likely to delay that could be detrimental.

In reality some commentators have suggested that the change would not have much impact at all.  As, in reality most employers decided whether or not to continue with an individual’s employment well before the 12 month (in reality 51 weeks) current deadline for bringing an unfair dismissal claim. 

It is likely that this measure is being considered in order to reduce the number of cases in an already overloaded Tribunal system and to improve the number of people in work.  There is a commitment in the Government’s Coalition Agreement which has largely gone unnoticed to have a wider review of how employment law is working in practice.  As part of this review the Government is also rumoured to be considering the introduction of an issue fee for submitting a claim to the Tribunal or the implementation of a County Court style costs regime, whereby the unsuccessful party would be responsible for the other side’s legal costs.  This would certainly have the effect of reducing the number of Tribunal claims issued against employers.  However, there are those who would argue that this would reduce access to justice.  Whatever your views, we will be keeping you right up to date with developments as and when they happen.

And Finally

A TUC survey has found that stress is the most common health and safety issue in the workplace, with bullying and harassment being the second most common concern.  We offer a wide range of bespoke training modules which deal with how to manage and reduce stress as well as how to prevent bullying and harassment.  Please contact Jenny Arrowsmith for more details of our T&E Advance training service. 

As well as looking forward to Christmas we will also be looking back at the major developments in Employment Law over the last 12 months.  Our next quarterly seminar is on 2 December and will be an update on all the recent changes in the law which it pays to keep up with.  To book your place please click on the link in this edition of People Law in Brief whilst there are still places left.