The Christmas party allows employers to thank staff for their hard work over the year. But a combination of relaxation and alcohol means that trouble can await those employers that don’t plan ahead, warns Adam Bernstein
Everyone loves a good Christmas party, and a well-planned corporate gathering can do wonders for morale. But as headlines have shown, employers are becoming increasingly alive to the risks they face from the simple act of trying to reward staff.
Secret Santa, a ready supply of alcohol, late nights and the blurring of the corporate command structure can give those in HR cause to wish the season of goodwill over – and quickly too. [wlm_nonmember][…]
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It’s not hard to find examples where employees have overstepped the mark and have later been sacked. Take the 2012 case that involved retail display solutions firm, Display by Design Ltd. It was involved in a claim (Gimson v Display by Design Ltd) after a work Christmas party when an employee had a disagreement with colleagues and subsequently punched one in the face, causing serious injuries.
The company instigated its disciplinary process and dismissed the employee for gross misconduct. The employee appealed to the Tribunal saying the incident was outside of the workplace and nothing to do with the firm; the Tribunal rejected this argument, because “the events after the works Christmas party were sufficiently closely connected to work to have had an impact on the working situation.”
The main issues for employers
The problem for employers is that they have to deal with anything and everything: fighting, assault, drunkenness, and discriminatory acts against other employees and venue staff.
What should be of real concern to employers is a legal principle called vicarious liability. This can make them, in certain circumstances, liable for anything employees do wrong in the course of their employment – including discriminatory acts and personal injury. An aggrieved person will inevitably try to bring the employer into the frame if they can, because they will probably have deeper pockets and will have the benefit of employer’s liability insurance.
Extensive risks
Mark Stevens, an associate at law firm VWV, points to a number of cases that illustrate the risks. Take Chief Constable of the Lincolnshire Constabulary v Stubbs and others (1999). Here, a female police officer was subjected to sexual harassment by colleagues in a pub even though this was outside working hours. The Employment Appeals Tribunal said that social events immediately after work or at an organised leaving party were within the course of employment.
And then there’s the 2016 High Court case of Bellman v Northampton Recruitment, where members of staff and the managing director went for post-party drinks at their hotel. Says Mark: “The party itself had been held at a golf club. When the conversation turned to ‘work politics’ the managing director became verbally abusive. An altercation ensued which ended with the managing director repeatedly punching a member of staff (the claimant) and leaving him with a life-changing brain injury.”
The Court of Appeal found that as the wrongdoer was the managing director and the incident happened at a post event ‘after party’ whilst work issues were being discussed, there was sufficient connection between the wrongdoer’s job and the wrongful conduct to mean that a finding of vicarious liability against the company was appropriate.
But there’s another case, noted by Mark, which is also worth keeping in mind. Of this he says: “The decision in Bellman can be compared with the 2004 ruling in Livesey v Parker Merchanting, where sexual harassment which had occurred in the car on the way home from a work event was held to be a continuation of the harassment at the party, and therefore there was no reason to distinguish the events in the car.”
Reducing the risk of incidents occurring
But employers can protect themselves, explains Mark: “Employers can defend a claim of vicarious liability by proving that they took all reasonable steps to prevent the employee from doing the wrongful act.” This includes reminding employees that the party is a work event and also the standard of behaviour that is expected.
Advice extends to employers reminding staff of any relevant policies such as a code of conduct, equal opportunities policy and bullying and harassment policy.
The impact of technology shouldn’t be underestimated either. In this day and age, policies should deal with pre/post event social media – like Facebook, Twitter and Instagram – and should also deal with ‘next day hangover absenteeism.’
Also, employers should beware how much alcohol is provided to employees at the party. Employers have a duty of care in relation to employees’ safety during the party, and this can also extend to ensuring that they get home safely. In particular, it is important to make sure that they do not drink and drive home. One suggestion is to end the party before public transport stops running or arrange a minibus or taxis.
If employers do provide a ‘free bar,’ then ensure that it is limited to a small number of drinks per individual. It is illegal for employees under 18 to drink; if firms provide young, inexperienced employees with unrestricted access to unlimited amounts of alcohol, they shouldn’t be surprised at the results.
Disciplining staff
But what of any allegations that are made? Mark says that no matter the cause, they should be treated seriously and dealt with in accordance with the relevant disciplinary procedure: “If allegations are not treated seriously, this may exacerbate the issue or give rise to future complaints.”
The process will depend on the situation and the seriousness. If, for example, an employee has harassed another, or a fight broke out, then the employer should act straight away to resolve the immediate issue, perhaps by getting those involved a taxi home. Then once they are back in the office, the misbehaving employee should be disciplined in accordance with the company’s disciplinary procedure.
But there is another potential question for an employer: what should happen when an incident occurs that leads to the arrest and imprisonment of an employee?
Here, Mark cautions employers to “avoid a knee-jerk response to incidents of this nature and investigate what has happened very carefully.” He says that one option is to suspend the employee on full pay: “But whether suspension is the right step will depend on what has happened, whether the employee is able to work (in any capacity), and the content of any relevant policies regarding suspension.”
Ultimately, the situation is the same as for someone who doesn’t attend work because of inclement weather. They are in breach of contract – no pay, possibly treated as unauthorised absence and disciplined accordingly. If an employee is caught drink driving, then the written policy should deal with it. If a need to drive is an essential requirement of the job and there is a clause to that effect in the contract of employment, then with care it is possible to dismiss. The advice is that short term prison sentences are not likely to be enough to dismiss an employee.
Issues over religious discrimination
The UK has become more multi-cultural over the years and some parts of society do not celebrate Christmas. Does this mean that employers have to note religious sensitivities? Maybe.
Employers should be inclusive. The invitation to the party should be extended to all staff, regardless of their religion. Also, employees who are absent, such as those taking parental leave or who are on a sabbatical, should also be invited. Remember, Christmas parties may not be everyone’s idea of fun, so attendance shouldn’t be mandatory.
Allied to not causing offence is the need to pick the right venue; it should be somewhere where all will feel comfortable. Any entertainment booked should be appropriate and inoffensive – and briefed in writing beforehand as to what is expected of them.
Employers should ensure the party caters for everyone equally. This should include consideration of alternatives to alcohol, the food options available and disability access at the venue.
In summary
Christmas is a time of giving. A well-organised party should cater for all in a way that doesn’t prevent genuine wholesome fun or put others at risk. A prudent employer will remember human frailties mean that some succumb to alcohol more than others; excess can change lives.
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Christmas planning tips
Party exemption
According to HMRC’s own rules, the cost of throwing a Christmas party for staff, or a party for staff at any other time of the year, is exempt for tax purposes provided certain circumstances are met. The rules allow the exemption if:
• The function(s) cost £150 including VAT, or less, per head (including partners);
• The function(s) are held annually; and
• Are open to all employees (even if they don’t all decide to attend).
The figure of £150 is not an allowance; if the cost per head exceeds £150 then the entire event is disallowed in respect of any tax exemption.
There is no restriction on the number of events each year that an employer can hold, so it could have a summer party and a Christmas party. Provided that both events were open to everyone and the combined cost did not exceed £150 per head, then both would be allowable.
Christmas music
If music is played in the business – whether from an iPhone, web stream, CD, or the radio – a PRS for Music licence will be needed. PRS for Music collects and distributes money for the use of the musical composition and lyrics on behalf of authors, songwriters, composers and publishers.
It’s also possible that a PPL licence is needed to play recorded music in public. PPL collects and distributes money for the use of recorded music on behalf of record companies and performers.
