In recent years many office Christmas parties fell victim to the recession. As we approach Christmas 2010 it appears that they are firmly back on the agenda with most employers wishing to reward staff for their continued efforts in difficult times. The festive period can be an extremely useful opportunity to boost morale and make staff feel appreciated. There are, however, some important issues which we feel employers need to consider during this festive season to limit the exposure to possible legal claims.

Planning
Employers should not insist that all staff attend the Christmas party as doing so could lead to allegations of discrimination. Christmas is a Christian holiday and employees may not wish to attend on religious grounds. Many employees will have childcare commitments which may prevent attendance.

All aspects of the party should be appropriate to ensure no offence may be caused by, for example the fancy dress theme, the venue, the catering or the after dinner entertainment. When the late Bernard Manning performed for one company, the host hotel was deemed liable for the offence caused to some of their staff by Manning's racist jokes.

Decorating the office
First things first….swivel chairs are not suitable for putting up Christmas decorations so staff should use a step ladder! Other health and safety issues should be considered such as not putting decorations on sources of heat e.g. computers and not decorating over fire exit signs. All electrical items brought into the office should be tested for safety before use otherwise your insurance may not cover you in the event of a fire.

Alcohol
Non scientific studies indicate that some people drink more when there is a free bar!
The safest approach for employers would surely be to not allow any alcohol but this is unlikely to go down very well with staff. Employers should consider how much free drink is available and what restrictions should be in place.

Three employees of a well known beer company got drunk and started fighting after attending a seminar on improving behavioural skills. The employees successfully argued that their resulting dismissals were unfair. One relevant factor was that the employer had provided a free bar and thereby was considered to have condoned the behaviour.

Employers should also be mindful that some people do not drink for religious and medical reasons or they may be the designated driver for the evening. Employers should ensure that staff do not feel pressured to drink and a selection of non alcoholic drinks should be made available to all.

(Mis)Behaviour
The office party, regardless of its location or timing is a work related activity and employees should be made explicitly aware of this. In the case of Chief Constable of the Lincolnshire Police v Stubbs, it was held that sexual harassment by one police officer against another was in the course of employment, even though the sexual harassment took place in a pub after work and at an organised leaving party. The Tribunal found these work related functions to be an extension of employment and the employer was therefore liable for the acts of the employee. Employers are therefore likely to be vicariously liable for acts of harassment, discrimination, assault or any other unwanted conduct carried out by their employees.
Employers should have in place clear equal opportunities, harassment and disciplinary policies to ensure staff are aware of the level of conduct which is expected of them. Employers may wish to issue a brief reminder to employees prior to the event confirming the standards expected and of possible disciplinary sanctions if staff misbehave. This may seem a bit Scrooge like but may offer some protection by demonstrating reasonable efforts were made to protect employees.
Recent changes under the equality act have broadened the definition of harassment. This means employees can complain about conduct they find offensive even if it is not directed at them. In view of this, mistletoe, which in essence encourages sexual advances, is clearly not a good idea.

Disciplinary Action
If any allegations are made during or after the event employers should follow their usual Disciplinary Procedure and ensure that any complaint is investigated thoroughly before any action is taken. Employers should ensure that their Disciplinary Policy is up to date and follows current best practice.

Promises Promises!
Warning….a promise is a promise, even if you do not remember making it.

As most people will already be aware, alcohol can make some people say things which they don’t really mean. In view of this, employers should avoid discussions regarding performance, promotion, salary or career prospects at any social functions. In one case an employee claimed his boss had promised him a higher salary “in due course” during a chat at the Christmas party. The employee’s pay remained static so he resigned claiming Constructive Dismissal. The employer had a very lucky escape. They successfully defended the claim but only because the nature of the promise was considered to be vague and uncertain.

Taxi?
If a member of staff has had too much to drink and plans to drive home, an employer should take responsibility. Employers have a duty of care to employees and because it is a work party travel arrangements should be considered. At the very least it would be sensible to supply some local, licensed taxi numbers and encourage staff to consider using them.

The (mid?)Morning after
If the party is mid week it should be made clear what the expectations are regarding attendance the next day and you should probably not expect too much from those who do turn up for work. Ensure all staff know the extent to which you will be lenient about coming into work late and if your expectations are breached that disciplinary action may be taken.

If there is a history of festive tolerance then employers need to ensure that any disciplinary action is fair and proportionate as it may be argued that such behaviour has become impliedly accepted over time.

Although the festive season presents some possible legal risks for employers the goodwill which can be generated through Christmas parties and other festive activities remains considerable. By acknowledging and taking precautions against some of the risks discussed above, employers should give themselves the best chance of enjoying a merry Christmas and a claim free New Year.

Debenhams Ottaway can provide detailed and responsive guidance on all types of disciplinary matters. We can carry out Audits of all your Employment documentation and procedures to ensure compliance with current laws and best practice. We offer businesses a free review of contracts and policies as part of the Employer Support Service which fully protects your business against the financial exposure of an employment dispute for an agreed monthly fee. Click here for further details.

For further advice and information, please contact Louise Attrup on 01727 735 663 or via email on la@dolegal.co.uk