Five reasons to remind your staff to behave during the festivities: Joanne Moseley, employment lawyer at Irwin Mitchell
You know December has arrived when you start receiving the boringly repetitive articles about the legal risks of hosting a workplace Christmas party. HR know all of this. So instead, of going through the legal issues, I want to share some real-life stories which all ended up in a tribunal.
Oh, and for those of you who want to know what to say to staff about the standard of behaviour you expect at your workplace events, how about this (which is lifted word for word from one of my old bosses who went on to become an employment judge): remember that the party is an extension of the workplace and “behave yourselves”. Job done.
- Judge v Crown Leisure Ltd (2005)
During a work Christmas party, Mr Judge got talking to a director who promised to increase his salary to bring it in line with that of a new employee. When his pay rise didn’t materialise Mr Judge resigned and claimed constructive dismissal. He failed on the basis that the discussion was not legally binding. The director was merely providing “words of comfort” and the promise was “nothing more than a statement of intentions”.
Moral of the story – don’t talk shop at a social event. Even if you’re not bound by your “promise” you may find that your employee takes matters into their own hands and decides to leave.
- Nixon v Ross Coates Solicitors (2010)
Everyone knew that Ms Nixon was having a relationship with a colleague. During the firm’s Christmas party she was seen kissing and going off to a hotel room with a different colleague. She became pregnant and informed her manager, and (for obvious reasons) asked him to keep it quiet for a while. Instead he informed the firm’s HR manager who also didn’t appear to be able to resist this bit of juicy gossip. Within a few hours, speculation about who the father might be had spread throughout the office – including to the potential fathers!
Ms Nixon complained (wouldn’t you?) and asked to work from a different office. For reasons that are beyond me, her employers didn’t agree to her request and, to add insult to injury, parked her grievance. She resigned, claiming constructive dismissal, sex and pregnancy-related discrimination and harassment. Unsurprisingly, she won her claims.
Moral of the story – where do you even start?
- Bellman v Northampton Recruitment Ltd (2019)
The managing director of a small company was in overall charge of the business. He organised a Christmas party for employees and their partners and arranged for taxi’s to transport the guests back home or to a hotel where some were staying the night. The MD and some of the staff arrived at the hotel around 12.30pm. Instead of going to bed, most stayed up drinking and talking. The conversation turned to work and stayed on this topic. The MD became angry after one of his decisions was criticised and he “summoned” those employees still around and told them he owned the company and could do what he liked.
One of the employees, Mr Bellman continued to challenge the MD who responded by hitting him twice in an unprovoked attack. Mr Bellman was knocked out and his injuries caused severe brain damage. He argued that the company was vicariously liable for the actions of its MD even though the incident had taken place after the party.
The case went all the way to the Court of Appeal who decided in Mr Bellman’s favour. It held that the MD had power and authority over his staff which he grossly misused. He was not a “fellow reveller” and had used his position to berate his staff and to attack Mr Bellman. This put the blame firmly at the door of his employers.
Moral of the story – don’t encourage staff to drink to excess, discuss work stuff etc. And, hitting someone is always a bad idea and can result in catastrophic injuries.
- Livesey v Parker Merchanting Ltd (2004)
Ms Livesey was the only female sales representative in the team. She had been sexually harassed at work by a colleague for months whose behaviour became cruder and more offensive as time went on. Things came to head during the Christmas party. Her colleague tried to put his hand up her skirt and made suggestive remarks about her.
She was expecting to travel home with another member of staff in their car. What she didn’t know was that the driver had agreed to give her harasser a lift home too. He got into the car and grabbed hold of her face, tried to kiss her, put his hands up her skirt and began to feel her breasts. She tried to push him off (unsuccessfully). The driver didn’t try and intervene.
She raised formal grievance and said that she couldn’t work in the same place has her assailant. He jumped the gun and resigned before the employer had concluded its investigations. Ms Livesey also resigned claiming constructive dismissal and direct sex discrimination. The EAT held that the sexual assault in the car did take place in the course of employment because it was a continuation of what had happened during the party. However, the employers avoided liability on the basis that they had done everything they could to avoid discrimination and had acted quickly once they knew what had happened [this was partly on the basis that the tribunal had found that Ms Livesey had not complained about the harassment until after the party].
This incident happened almost 20 years ago and I’d hope that today, an employee would not put up with such appalling treatment without complaining, or that a tribunal (given the same facts) would have decided that the employer’s response met the statutory defence.
Moral of the story: – make sure that you train your staff about what is and isn’t acceptable behaviour and take action against members of staff who step over the line.
- Gimson v Display by Design (2011)
In this case Mr Gimson was walking home with colleagues after their work Christmas party. He had an argument with one of his colleagues, then punched another who was trying to diffuse the situation, causing him serious injury.
The employer instigated a disciplinary procedure, and subsequently dismissed Mr Gimson for gross misconduct. He argued that he had been unfairly dismissed because the incident had taken place outside the course of employment. He also said that his punishment was disproportionate. The ET found that events after the Christmas party would not have happened “but for” the Christmas party, and were sufficiently closely connected to be in the course of employment.
His unfair dismissal claim therefore failed.
Moral of the story: make sure your staff are aware that if they behave inappropriately at or after a Christmas party, they may be disciplined or dismissed.
