It's that time of the year when the tinsel and mince pies come out far too soon and it's acceptable to wear questionable knitwear to work. In office life, Christmas is practically synonymous with a lavish office party resulting in bonding, carousing and hangovers. For employers, Christmas parties provide a unique opportunity to strengthen teams, thank employees and relax. However when one drink flows into another, an evening of cheer can quickly turn into a serious problem with far-reaching consequences, to the extent that employers can be potentially liable for their employees' drunken actions.
What constitutes the workplace?
It is a long-established legal principle that whether the party or social event takes place in the office or not, it will be considered to be an extension of the workplace and employers can be vicariously liable for the events that unfold. For example, work nights out to the pub or leaving celebrations will often still be considered to be the workplace on the basis that the events would not have been attended but for the work connection.
There are then instances where the formal work party continues elsewhere after the main event. The Court of Appeal last year looked at what constitutes “in the course of employment” in the context of after-parties. In this case, the after-party was an entirely independent, voluntary, and discrete event of a very different nature to the company-organised party, and yet the Court of Appeal held that the employer was vicariously liable for the assault by one employee on another. Although this may sound extreme, the Court of Appeal decided that since the managing director was lecturing the group in his role as a superior when he punched the subordinate, and since the act should be seen against the background of the earlier party, there was sufficient connection between his wrongful act and the employing company (Bellman v Northampton Recruitment Ltd ).
This may seem overly harsh and may even put employers off hosting Christmas parties altogether, but it is worth noting that the facts of Bellman were very particular. For a more commonplace example, in the more recent case of Shelbourne v Cancer Research UK 2019, it was held that the employer was not liable or negligent when an employee dropped a co-worker on the dancefloor causing spinal damage. Here, Cancer Research had carried out a substantial risk assessment so had discharged their duty of care. Importantly, the wrongful act had nothing to do with the employee's role at the company so Cancer Research was not vicariously liable, even though the events took place at a work Christmas party.
What can employers do to avoid the legal hangover?
1. Planning ahead
An employer has a general duty of care towards its employees, not just with regard to how colleagues behave towards one another. The duty is wide and extends to issues such as ensuring the venue is accessible to all, including those with disabilities, and making sure people can get home safely. Staff should be reminded not to drink and drive and details should be given on how people can get home after the event. Some companies arrange a minibus for transport, provide local taxi numbers and/or give details of the nearest public transport routes. It can be a good idea to make sure the party finishes before public transport stops for the day.
Employers should also ensure that the celebrations are non-discriminatory in all respects. Food and drink options should take vegetarian and vegan requirements into account and non-alcoholic drinks should be provided. Employers should try to avoid clashes with other religious holiday dates such as Hanukkah and invites should not focus on full-time employees but also be inclusive of (where applicable) agency workers, fixed-term or part-time staff, as well as those on leave, for example maternity leave.
2. Risk assessment
Having a thorough risk assessment in place for the venue is key to avoiding negligence claims. The risk assessment should include examining the venue for unstable surfaces and dangerous corners as well as having steps in place for any foreseeable injuries such as slips or falls.
3. Reminder of standards expected
It can be helpful in advance of the Christmas party to issue a reminder to staff that the Christmas party is an extension of the workplace and reminding them of conduct matters, including the risks of excess alcohol consumption, that inappropriate behaviour and unwanted conduct may lead to disciplinary action being taken in the same way it would as if it took place during work hours. In light of the #MeToo movement many employers issue a reminder of the types of behaviour which could amount to harassment in an effort to be seen to be taking “reasonable steps” to prevent incidents between colleagues.
It is also a prime opportunity to remind the workforce of all applicable company policies, relating to equal opportunities, discrimination, bullying and harassment, drug and alcohol misuse, social media and any other relevant policies.
4. Alternatives to the “traditional” party
Whilst the “dry” approach to a Christmas party may not be the best morale booster at this time of year, some companies are trying to limit alcohol consumption during the festive season by replacing the traditional parties with themed activities or team-building events. This type of approach may also be seen as more inclusive to the entire workforce, some of whom may not want their work-social event to focus on the consumption of alcohol.
Where an incident occurs and a complaint is made, employers should deal with it fairly and swiftly, regardless of whether the incident occurred at a formal work event or an after-party. Investigations should be conducted professionally and thoroughly – a failure to do so could result in additional complaints.
Where an incident involves more than one employee, steps should be taken to ensure all those involved are given a fair opportunity to present their version of events and this principle should not be overlooked in situations where you are dealing with a complainant and an alleged perpetrator. Often the rights of the alleged perpetrators are put aside and there are knee-jerk reactions before the full facts are known.
The legal responsibilities associated with them may mean that Christmas parties seem like too much of a risk. However the good news is that the horror stories tend to arise from quite particular and often quite extreme situations. With a few simple precautions, you can make sure that your Christmas party strikes the delicate balance between entertainment and professionalism.