Entering Into The Christmas Spirit

It’s that time of year again ..... the tree, the turkey, the mistletoe and mulled wine....... and of course that very important date in everyone’s diary – the office Christmas party. This highlight in the employee’s schedule is perhaps the only opportunity in which all employees can get together, relax and reflect on the highs and lows of the past year. However, such parties often provide enough scandal and gossip to get the employees through the coming year!

Many employees will assume that at the traditional office party the normal rules of workplace do not apply, particularly when the party is organised out of hours and takes place in a hired venue. Generally what employees get up to outside work is of no concern to their employer.

However, employment tribunals have recognised that off-duty misconduct will become the employer’s legitimate concern if a clear link can be established between the business interests of the employer and the misconduct in question. Indeed, in the case of office parties, tribunals have not had any difficulty in finding a link between the behaviour of the employee and the genuine interests of his or her employer.

Employers are also entitled to be concerned when an employee’s behaviour in front of colleagues is likely to impair his or her effectiveness at work.

Many of the cases which reach the tribunals concerning work-related social events involve drunken employees. Clearly an employer should not expect employees at an office party to remain completely sober, especially if, as is often the case, the employer is paying for the drinks. If an employee’s behaviour becomes so outrageous and so disruptive through drink, then an employer might be able to take action against the employee providing it can show that genuine business interests are likely to be threatened by this behaviour.

Behaviour at office parties may affect the regard in which an employee holds his employer or manager. For instance, in a decision by the employment appeal tribunal, it was held that it was reasonable for an employer to dismiss a deputy manager who admitted to smoking cannabis at an office party. The employment appeal tribunal found that by smoking cannabis in front of junior colleagues at a company function, the employee’s reputation and authority as a manager had been damaged. The fact that the employer had not given much guidance to managers on how to behave at company functions was not enough to make the dismissal unfair.

Considerations may be entirely different, however, where an employee’s drinking leads to violent behaviour. Employers are entitled to regard assaults on colleagues, even outside working hours, as a very serious form of misconduct.

Although everything will depend on the circumstances of the particular case, a tribunal is unlikely to find that the dismissal of an employee who becomes violent at an office party is outside the band of reasonable responses open to an employer.

For instance, in one case A was on the dance floor at the Christmas party when he was assaulted by B. A retaliated and a fight ensued. A full investigation of the incident led to A’s dismissal. The employment appeal tribunal held that a company that took a strict view on matters such as discipline and fighting was entitled to dismiss employees who indulged in fighting on the company’s premises. The matter had been investigated fully and dismissal was within the band of reasonable responses, although the employment appeal tribunal did note that it was unfortunate that a company which took a strict view of such matters chose to hold a business party with such a large amount of free alcohol.

Caution, however, has to be exercised when dismissing staff who behave in an unacceptable fashion. In a tribunal case involving Dixons in 1993, two employees won unfair dismissal claims after being dismissed for 'unacceptable lewd conduct' at the Christmas party. The tribunal found that although the dismissals were potentially fair, the previous history of the firm that had allowed 'turns' of this sort for many years meant that Dixons should have communicated its change in policy to the staff. In the absence of such communication, the tribunal came to the conclusion that the employer had not acted reasonably in treating the men’s act as gross misconduct, or to apply the sanction of dismissal to it.

When unwanted conduct of a sexual kind takes place at work this may amount to sexual harassment for which the harasser could be dismissed for gross misconduct. The victim might claim sex discrimination.

The fact that the harassment occurs outside office hours will not prevent it from amounting to misconduct, potentially justifying the dismissal of the harasser. Harassment of a colleague at an office function will have clear implications for the employment relationship.

There is a delicate balance to be struck here between, on the one hand making allowance for the fact that behaviour that would be considered inappropriate in the work place may not been seen in the same way in a social environment, while on the other recognising that conduct which is unreasonable and offensive to the recipient cannot be excused on the basis that it took place at an office party. Employers investigating complaints of harassment at office parties must therefore be careful not to assume that because alcohol has been consumed or because the event took place in a social environment there was blame on both sides or that otherwise unacceptable behaviour might be excused. A failure to deal effectively with complaints of harassment can in itself result in sex discrimination or constructive dismissal claims. Any claims of sexual harassment should therefore be dealt with promptly and properly.

Christmas in particular is a time when employees are likely to be in the mood to celebrate. This can cause considerable disruption even if the employer does not hold a formal party. Lunch breaks immediately prior to the Christmas holiday may become somewhat drawn out and a general 'end of term' atmosphere may prevail. Indeed employers may be expected to get into the festive spirit. A clear exception to this is where it could cause concern for safety or where patients are being cared for, for instance in a nursing home.

Of course each case must be treated on its merits and the fact that an employer has been lenient in the past will not necessarily mean that a strict view cannot be taken of more serious cases.

And what about drink driving? At the very least it would be irresponsible to allow an employee, who has obviously consumed a large quantity of alcohol, to drive home, especially if he or she is driving a company car. It would therefore be advisable to remind staff periodically that they must not drive whilst under the influence of alcohol and that to do so, even out of office hours, will lead to disciplinary action.

• A week or so before the Christmas party perhaps gently remind employees that the party is still a work environment and that colleagues should therefore be treated with respect
• Staff should be reminded to ensure that they do not drive after the party if they intend to drink
• Restate the company’s Equal Opportunities policy and make clear that acts of sexual harassment or any other unacceptable discriminatory behaviour will lead to serious disciplinary action
• Make clear that the party is not a licence for insubordination and that being drunk does not excuse the employee from telling the boss just exactly what he or she thinks of him!
• Remember to keep that kiss under the mistletoe at just that – sexual harassment is unwanted conduct of a sexual kind

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.