It would be rude-olph of us to let this festive season pass by without comment on the much-anticipated but potentially risky Christmas party. To ensure that you are (three) wise (men) this festive season, take a few minutes to come on a whistle-stop sleigh ride with us and look at some ways to mitigate risk and manage issues arising out of the infamous Christmas party:

1. Santa owes his elves a duty of care and may be vicariously liable for any naughty-list worthy behaviour

The Employment Tribunal (ET) decision in Chief Constable of Lincolnshire v. Stubbs held that a colleague's leaving party or informal drinks with colleagues after work could be an extension of employment. It is therefore generally accepted that Christmas parties are also an extension of employment as there is likely to be a very close link between the employment relationship and the off-duty conduct at a Christmas party. As a result of this it's always worth employers sending a gentle reminder to employees of the standards of behaviour expected of them at Christmas parties.

A good way of doing this is referring employees to the company policy on workplace social events. Such a policy could include reference to:

  • dress-code (Mrs Claus' golden rule: no-one wants to see through it, up it or down it);
  • alcohol consumption (be merry but not boundary-obliterating merry – know your limits!);
  • social media (don't post THAT picture); and
  • the company's commitment to preventing harassment and discrimination (chasing "all the jingle ladies" whilst brandishing mistletoe is never a good idea).

It's important for employers to have such a policy as under the Equality Act 2010 they are generally liable for acts of discrimination, harassment and victimisation carried out by employees during the course of employment. The only real defence to this liability is being able to show that all reasonable steps were take to prevent such acts. Having a policy is usually a reasonable step, though remember the policy will not be enough, by itself.

Employers shouldn't worry (too much) if they don't have such a policy yet; they should just be sure to remind employees that, whilst the Christmas party is a social occasion and meant to be relaxed, it is still a work event. Employees should be reminded to behave accordingly and referred to any applicable policies in the handbook. It is, however, worth considering putting in place a workplace social events policy in the new year (what better way is there to beat the January blues than policy drafting?).

2. Free-flowing eggnog* (*insert other alcoholic drink of choice)

Free bars – a great way to reward your employees and boost morale, but they can also be more dangerous than King Herod's reputed rage against babies!

Whilst not involving a Christmas party, the case of Williams and others v. Whitbread Beer Company Limited did involve a free bar and three rowdy and intoxicated employees. The evening ended with both beers and punches being thrown. The employer subsequently dismissed all three employees. The ET, however, and later the Court of Appeal, found that the dismissal was unfair partially because the employer had paid for the alcohol that undoubtedly fuelled the fight. The employees' awards were, however, reduced to reflect their contribution to their dismissal (i.e. their drunken brawling).

Mrs Claus' top tip to help avoid such unpleasantness whilst still having a holly jolly time – limit the free bar in some way. This might be only opening the free bar before dinner (a Christmas dinner is an excellent way to soak up the alcohol), limiting the type of alcohol that is served, not allowing drinks containing double shots, or not allowing shots without mixers to be served.

Also see point 1 above about reminding employees of the standard of behaviour that is expected.

3. Silent morning

The morning after the big night: all is calm, all is bright … because half of the workforce don't turn up!

Where it's not possible to have the Christmas party on a Friday (employees languishing in their over-indulgence in their own time is always best) you will need to remind employees that they are expected to attend work on time unless they have booked holiday in the usual way. Where employees fail to turn up to work (and don't have a valid reason), the company may be able to refuse or deduct the appropriate amount of wages (a valid Scrooge moment) - but check the contracts first.

If the company disciplinary policy or the small print in the jolly party invite does not specifically state that lateness or absence the day after the Christmas party may result in disciplinary action, employers should approach any formal action carefully. Where employers do want to take a firm line on this and it is not specifically in the policy, when reminding employees of the standard of behaviour expected (as per point 1 above) they should state that lateness or absence on the day after the Christmas party may lead to disciplinary action. However, employers still need to proceed with some caution as there may be genuine absences (not just a newly discovered allergy to sprouts) and the usual investigation requirements apply.

4. Nasty hangovers and employees on the naughty list

When the hangovers from the free bar have faded there may still be hangovers in the form of employees to be put on the naughty list because of their conduct at the Christmas party.

Gimson v. Display By Design Ltd involved a claimant who, when walking home from a Christmas party, punched a colleague in the face causing serious injury. The claimant was dismissed by his employer. The ET found that his dismissal was fair as his employer had a genuine belief that he had assaulted another member of staff after a work event and had undertaken a reasonable investigation. The ET also found that had there not been a Christmas party the employees would not have been walking home together, therefore the assault was sufficiently connected to employment. Also of relevance was the fact that the company was small and so future contact between the employees would be unavoidable. Therefore the assault also impacted the ordinary working day.

Where misconduct does occur employers need to ensure that they follow the company's policies and procedures when taking any disciplinary action. They should also be sure to document all meetings and decision-making (as thoroughly as a child writing their letter to Father Christmas!).

Where there are multiple employees involved employers need to be careful to treat them equally in terms of disciplinary action or, if deciding not to treat them equally, be able to explain clearly the reasons for the different outcomes and to document those reasons. In Gimson there were two other employees involved. The employer's investigation found that the employee who had been seriously injured had in fact been trying to keep the peace (no disciplinary action was taken against him) and that the other employee had subsequently been apologetic for his behaviour (employee received a final written warning). In contrast the claimant had actually used physical violence and had not accepted any responsibility for his actions.

Conversely in Westlake v. ZSL London Zoo, an ET case also involving employees who ended up in a fight after a Christmas party, the ET found that there was insufficient evidence to establish who was to blame and therefore the difference in treatment (one dismissal and one final written warning) was unfair.

We ho-ho-hope that you have a very Merry Christmas and a Happy New Year (and that you have an incident-free Christmas party)!