The Guilty Party

From an employer’s perspective, the Christmas knees up is a balancing act between giving staff free rein and keeping a lid on the frivolity.

My law firm decided to visualise some of the instances of employee misconduct we’ve advised on arising from Christmas parties (you can see these dotted throughout the article) and offer advice for employers hoping to avoid getting into hot water this festive period.

More than a hangover

Social events are likely to involve alcohol, which can present problems when it comes to maintaining a professional level of responsibility.

Snap decisions that are sometimes made – a promise of a pay rise over a drink in the bar, or at worst, instant dismissal – would be unlikely to stand up in the cold light of day. These are both scenarios that we have advised on, and the end result is rarely pretty for either side.

Another feature of alcohol-fuelled events can be sexual and other types of harassment. A hand in the wrong place or a word said in jest can leave an employer (and the perpetrator) with more than just a hangover.

I once had a client that found itself being sued for sexual harassment at a Christmas party. They ended up spending more than £27,000 defending the claim – I think that might be the most expensive Christmas party they ever organised.

One of the biggest legal bear-traps is whether misconduct at a party amounts to behaviour ‘in the course of employment’, and whether the employer’s policies capture it.

Let’s say a fight breaks out between two partygoers – this will invariably give rise to disciplinary action, with the employer taking action against one or more of the individuals concerned.

However, imagine if a member of the public then became embroiled in the fracas and is injured. What then?

Duty of care

In these circumstances an employer may be ‘vicariously liable’ for the actions of the employee, even though this was at a social event outside normal working hours and when an employee is apparently ‘off duty’.”

In this way, an employer may even have a duty of care to third parties, particularly in the context of personal injury. This position is, however, far from clear in the context of employment law since the repeal of third party protection arising from discrimination.

Dismissal on the dance floor

Another key point to remember is that, as an employer, you can’t simply say ‘You’re fired’ at a party and leave it there.

In fact, you’re likely to end up with a finding of unfair dismissal on procedural grounds. However, if the behaviour was severe enough, the employee would not necessarily end up with any compensation.

If the employee’s conduct is sufficiently culpable or blameworthy, then compensation can be reduced by up to 100%. It is also open to an employer to argue that even if it had followed a fair procedure, that this would have made no difference to the case’s outcome.

This does not render an otherwise unfair dismissal fair, but again, it can effect compensation.

If, however, an employer cries dismissal in the heat of an alcohol-fuelled moment and then comes to regret the decision in the cold light of day, there may be difficulties in recanting the outburst.

It’s not always open to an employer to simply retract a dismissal. The reason for this is that a dismissal cannot be unilaterally withdrawn.

Mutual agreement is required and, in such a case, an employee may feel that the relationship is beyond repair.

Make a list and check it twice

In any case, if a Christmas party is planned for the coming weeks, there are a few things you can do to make sure things run as smoothly as possible.

An important factor for employers is to gently remind staff in advance of any social event – particularly those occurring off site – that they still represent the employer.

They should also be reminded of the existence of drug and alcohol misuse policies.

The key is to strike a balance between encouraging personal responsibility, trusting the staff to be responsible independently, and gently reminding staff of the consequences of bad behaviour.

Couple this with a strong contract and set of policies and you’ll be in the best position to deal with, or avoid, any problems over the next few weeks.

About the author

Meredith Hurst

Meredith qualified as a lawyer in 2001 and has a broad base of client experience gained with national and international law firms. He is a versatile employment lawyer who advises senior employees and businesses on all employment law related matters.