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

For employment lawyers the festive period a time for an increased level of enquiries surrounding a number of common issues arising out of the traditional Christmas party.

A recent survey has indicated that around half of UK employers are cancelling this years Christmas party, largely over concerns with coronavirus and the recently discovered Omicron variant. Employers who are holding Christmas parties in 2021 are often organising smaller department only events instead of company-wide parties. Regardless of the size of party employers there are common issues that can arise.

Employees may well want to let their hair down and enjoy themselves (particularly after missing last years Christmas party), however the relaxed atmosphere – and the increased alcohol consumption – can often lead to a number of issues, from inappropriate behaviour, to some seeing it as an opportunity to air frustrations that they have sat on all year.

As with most employment law matters, prevention is better than cure. 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. 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. 

The preparations

1. How can you accommodate all employees

• To prevent any suggestion of discrimination, be sure to send an invite to all employees, including those on maternity/paternity leave as well as those on sick leave, depending of course on the nature of the person’s illness (those required to self-isolate as a result of COVID should not attend).
• Don’t force or put pressure on anyone to attend. If the party will take place outside of working hours, keep in mind that some employees may have childcare responsibilities and non-Christian employees may feel uncomfortable about attending.
• Think about ways of celebrating that are more inclusive. Simple adjustments such as switching out an evening event for a lunchtime meal, providing alcohol-free options or framing the event as an end-of-year celebration may prevent anyone from feeling excluded.

2. Communicate key policies and expectations before the event

• Ensuring that the organisation’s policies are up to date is a key step. Relevant 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. 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.
• Employees should be aware that the normal rules of gross misconduct apply in situations which could be considered an extension of the workplace, including the Christmas party.
• 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. These issues should be addressed throughout the year by the provision of regular training sessions and communication with staff.  

On the night

3. Keep a close eye during the event

• It may be sensible to appoint a senior (and sober) member of staff to monitor the party and those attending. This ensures that swift action can be taken to deal with any member of staff who is acting inappropriately, but also in case there any other emergencies which may arise.
• Employers should consider the amount of free alcohol, if any, that they wish to provide for staff. 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. 
• 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. No disciplinary action should be conducted during the party itself. It may, however, be appropriate to send the employee involved home in some cases.

4. Consider how employees will get to and from the event

• Given the duty of care which employers have to their staff, efforts should be made to ensure that 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.
• Police ramp up their surveillance in the lead up to Christmas, so for this reason and in the interest of safety, enforce a strict no drinking and driving policy. Remind staff that overdoing it may mean they are under the influence the next morning, and they may need to be able to turn up to work the following day without putting themselves at risk.

The aftermath

5. Keep ahead of potential disciplinary situations

• Where there has been an incident 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 incident. If, for example, someone simply got a little carried away, 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.

6. Addressing an employee’s complaints

• Where a complaint is made by an employee, 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 into complaints raised by an employee, 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.