Whilst I appreciate that some will say that it is "only" November and therefore too early for a festive article, Douglas Borough Council has started decorating the town with Christmas trees and fairy lights and so, as far as I am concerned, the festive countdown is on!
The recent English Employment Appeal Tribunal ("EAT") case of MBNA Limited v Jones (UK EAT / 0120/15/MC) is a good example of a staff night out gone wrong.
The Background Facts
MBNA Ltd (the "Bank") hosted a corporate event to celebrate its 20th anniversary. Staff were told that it was a work event and that normal standards of behaviour and conduct would apply and any misbehaviour would be subject to the Bank's procedures and guidelines.
An employee called Mr Jones (the "Claimant") and some other employees had started drinking prior to the event. At an early stage of the evening, the Claimant was kneed in the back of his leg by another employee to which the Claimant responded by licking his fellow employee's face. Onlookers considered the incident to be no more than "fun / banter". Later in the evening the Claimant was again kneed in the leg and at this stage the Claimant punched his fellow employee in the face. The corporate event ended and the night continued with some employees going to a local nightclub. While the Claimant was inside the club, his fellow employee waited outside and sent the Claimant a number of text messages threatening to (inter alia) "rip your ******* head off". No further incident did in fact occur.
The Bank conducted a disciplinary investigation and brought charges against both the Claimant and the other employee. The Claimant was charged with, among other things, punching his colleague and behaviour which could harm the reputation of the Bank. The Claimant claimed self-defence. The Claimant was dismissed; his colleague, however, was not and received a final written warning in circumstances where it was found that the inappropriate text messages were made as an immediate response to the Claimant hitting him. The Claimant brought a claim for unfair dismissal, arguing that he had been subject to inconsistent treatment which was unreasonable. The Employment Judge agreed with the Claimant and found the dismissal to be unfair. The matter was thereafter appealed to the EAT.
The EAT overturned the Employment Tribunal's decision. In particular, the EAT noted that the Employment Judge had not, when considering any argument on disparity, expressly drawn a distinction between a deliberate punch in the face at what was designated to be a workplace and a threat afterwards that was never carried out.
This case is but one further example in a body of case law which has arisen as a result of behaviour and acts committed at social events and/or Christmas parties which are considered to be an extension of the workplace. It is most definitely the season to be jolly and whilst an employer can't always stop bad behaviour, induced by alcohol or general festive exuberance, it can manage the expectations of staff so that everyone knows the standards of conduct that will be expected from employees at work social events and the consequences if these are not maintained.
While it may be too early to wish readers a Merry Christmas, planning the office Christmas party should act as a timely reminder to employers to ensure that company disciplinary, harassment and discrimination policies are in force and up to date.
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