With the festive season now upon us, employers may find themselves dealing with misconduct both within and outside the workplace. Dealing with these matters is not straightforward and, if handled incorrectly, can lead to tribunal claims and financial consequences. Misconduct is easier to manage when it occurs within the workplace, but misconduct can raise issues of liability for employers when it happens outside the work place. So where is the line drawn?

The facts of two cases emphasise problems that can occur at Christmas parties. One employee claimed unfair dismissal after being disciplined and summarily dismissed for punching a colleague whilst walking home after the Christmas party. The employee claimed that the conduct occurred outside the course of employment. However, the tribunal held that the dismissal was justified because the Christmas party was closely related to work and would affect the working environment.

In another case, a female employee won a sexual harassment claim against her manager after he made sexual advances toward her at the Christmas party.

Therefore, employers should also be aware that they can be held vicariously liable for actions committed by employees in the course of their employment, which includes work-based social gatherings. So, be alert to developing problems and step in if things are getting out of hand.

When dealing with misconduct outside work, it will usually be unfair to automatically discipline and/or dismiss an employee unless the conduct has some material and detrimental impact on the business (for example, actions which damage its reputation), the employment relationship (for example acts involving harm to other employees) or the employee's ability/suitability to do his or her job (for example, acts of dishonesty). A number of factors should be taken into consideration, including the nature of the employee's job, past service record and whether there are any alternatives to dismissal.

Employers should consider taking the following pre-emptive steps before work-related events:

  • Remind all employees of any bullying, harassment, equal-opportunity and disciplinary policies and that they may be subject to disciplinary action for unacceptable behaviour.
  • Explain that the event is work-related and will be subject to company rules and procedures.
  • Remind employees to drink alcohol responsibly and in moderation.
  • Coach managers on how to respond to unwanted conduct that may occur.
  • If any inappropriate behaviour occurs, take swift action, especially where an employee makes a complaint.
  • Avoid acting hastily and dismissing an employee before undertaking a fair disciplinary procedure. The investigation and decision have to be fair, objective and reasonable given the circumstances.

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.