Top tips for employers on handling Christmas-do headaches

With work Christmas parties winding down for another year, now is often the time when employers start to become aware of possible bad behaviour that took place either during or after these work-dos.

It is important to remember that as an employer you are vicariously liable for acts of discrimination and harassment committed by your employees in the course of employment, pursuant to section 109 of the Equality Act 2010. This includes acts carried out without your knowledge or approval. Moreover, case law tells us that ‘in the course of employment’ extends to work-dos and social gatherings immediately after work as just a few examples.

Whilst there is a defence to vicarious liability in cases of discrimination and harassment, as contained within section 109, this is rarely successful as it focusses on an employer’s obligation to take preventative action.

See below some examples of issues that may arise and our top tips for avoiding these employment related hangovers.

Example 1

Two colleagues are well-known for their ‘flirty banty’ at the office. At the Christmas party, colleague A subjects colleague B to repeated and persistent inappropriate sexual behaviour which she rejects.

This behaviour could amount to sexual harassment as set out in section 26 of the Equality Act 2010.

This fictitious example is inspired by the case of Chief Constable of the Lincolnshire Police v Stubbs and Others [1999] IRLR 81.

Example 2

After the work Christmas party, a number of staff decided to continue the party and go out for drinks at a nearby bar. The taxis to the venue were expensed by the company and management also provided a reasonable bar tab for drinks. During these ‘after’ drinks, a disagreement broke out and colleague A punched colleague B.

This behaviour could amount to gross misconduct and therefore breach of contract by colleague A. If Colleague B resigns in response to this misconduct, perceiving it as a repudiatory breach of contract, they may have a potential claim for unfair constructive dismissal provided they are eligible.

This fictitious example is inspired by the case of Bellman v Northampton Recruitment Ltd [2018] EWCA Civ 2214.

Example 3

During the first few weeks of January, staff are reminiscing about the work Christmas party. Colleague A, a self-proclaimed Atheist, makes a derogatory joke about Christians and their festivals and most of the office proceed to join in. Colleague B, a Christian, leaves work feeling intimidated, offended and degraded.

This could amount to harassment, on the basis of religion as set out in section 26 of the Equality Act 2010.

Example 4

Colleague A, a Muslim, is not invited to a Christmas gathering hosted by her work department as the organisers concluded that this would offend her on the basis of her religious beliefs.

This could amount to direct discrimination on the grounds of religion, as set out in section 13 of the Equality Act 2010.

Top Tips

• Carry out independent and objective investigations into any allegations made and keep robust and accurate written records;
• Explore informal methods of resolving the issue where appropriate, before adopting more formal methods;
• Ensure that your company has clearly identified someone who is responsible for providing sexual harassment support and assistance for employees who are affected by sexual harassment;
• Where appropriate you could issue a policy statement reiterating that all employees are entitled to be treated with dignity;
• Provide training for staff and management on discrimination and harassment;
• Ensure that employees are aware of and have access to their staff handbook and/or policy documents;
• Consult your company’s complaints and/or grievance policies and follow company procedure accordingly; and
• In complex cases, seek independent legal advice.

This is by no means exhaustive guidance on how to handle a dispute that could arise from start to finish but may give you some comfort in how to approach the initial stages of a similar dispute should this arise.

In cases such as Example 2, where you are faced with a potential disciplinary situation and/or claim for unfair constructive dismissal, you may require independent legal advice on the options available to you.

If you have concerns that your policy documents may be out of date, contact us for a free health check. Additionally, if you have concerns about a potential dispute, contact our Employment Law Advice team on 01202 525333 or by email at employment@ellisjones.co.uk and we would be happy to help.