Statistics show (and if they don’t, then they should) that by far the most despised piece of marketing by any UK law firm is the traditional desperate mailing sent out by Employment teams warning clients of the legal perils circling like sharks around the Christmas party.
Within that single innocent event, burbles the flier, lies scope for debauchery, injury and legal liability on a scale unseen since Caligula. Your staff may technically enjoy the event, it concedes grudgingly, but only so far as they can do so under the constant threat of HR’s all-seeing eye and tear-off pad of disciplinary warnings. Tra la la, etc.
The thing is, even if they have the bladder of a camel, the libido of a chimpanzee and the religious sensitivities of Donald Trump, 99% of any organisation’s employees know full well where the boundaries lie. No wonder the memo from HR is greeted with rolling eyes and the sort of hand gesture you may remember from the old Gareth Hunt coffee advert. But while that should give law firm marketing departments some pause for thought, does it actually undermine the merit of the message? Is there actually some benefit to the employer in some pre-emptive shot across the bows of the 1%, even if it irritates the 99%?
You might quite reasonably conclude that the 1% are either hardened harassers or too drunk to focus on HR’s memo at the vital moment and so the memo will fall on deaf ears anyway. But take yourself forward to the Tribunal hearing of the resulting discrimination or harassment claim, where you will potentially be relying on the s109 Equality Act defence, i.e. that you took all (my emphasis) reasonable steps to prevent that sort of conduct occurring. What would have been so hard, presses the employee, about asking people not to behave inappropriately? The first tempting answer (“because it’s too obvious to need saying”) falls on its face immediately in circumstances where, because the thing happened, it clearly wasn’t. There is also no merit for those purposes in the argument that issuing the warning shot wouldn’t have made any difference. You don’t know that for sure. Also it is as good an admission that you are expecting trouble as you are likely to find. The last tempting answer “because they will all roll their eyes and make that Gareth Hunt coffee advert gesture, Judge”) puts HR’s sensibilities above the good of the employees and so won’t take you anywhere either. The short point is that you had an obvious and simple step you could have taken and didn’t.
And of course this is not just an employment issue, but also a health and safety one. If the venue for your bash contains any hazards (other than your colleagues, of course), your ability to defend a negligence claim will be strengthened by some prior cautionary note to staff about them. Take London’s HMS Belfast, for example, now a recognised party venue. However, it is full of steep stairs, trip hazards and sharp edges, and surrounded by icy and polluted water. On the upside, it also has guns with which in a quiet moment you can imagine yourself shelling the Big Brother house at Elstree. Are you going to turn up in Court, recognise (as you must) that such an unyielding environment will not go well with the heels, scuffles and alcohol you could foresee at almost any Christmas function, and then argue that it wasn’t reasonably practicable to have warned of this?
So sadly, however abrading the earnest tone of the lawyers’ mailings, the message is a real one. No one can say that a pre-event note of caution would definitely make the difference either way. However, it is easy to do and (suitably couched) does little lasting harm to HR’s credibility.
So encourage your staff to have fun certainly, celebrate a successful year for the office by all means, but please also to keep half an eye on where they are, on who they are and on whether what they were just thinking of doing with or to that colleague is really appropriate to either.