Employment law: The problems of the office Christmas party

Alex Jones, of 365 Employment Law, goes beyond run of the mill advice to employers to reveal what most guides don’t tell you.

We are now at the time of year where there are lots of articles and guides on “How to avoid the pitfalls of the office Christmas party”. I am sure that, as you start to read this, you will be thinking, ‘oh no, not another one’, but please bear with me! 

I regularly read the identikit articles on avoiding staff issues at the Christmas party and find myself trying to work out whether or not they were all written in one place and, more importantly, do the tips that they actually give help employers avoid employment claims should something go wrong. Many do not, merely saying the same thing, with the advice almost always listing two key points that will help employers avoid claims, i) write a policy; 2) tell staff what is expected of them. 

Whilst both of those are a good starting point, they will not stop the problem and, in many respects, make it worse if the employer puts a policy in place – and then does nothing.

I have specialised in employment law claims (both bringing and defending them!) for over 20 years, and I have dealt with employment issues involving office Christmas parties, and have two (amongst many), very specific examples:

1) I acted for a Claimant Employee, who when drunk at the office Christmas party at a restaurant made an off-hand comment to the owner. The owner then launched a drunken tirade at my client, who then responded by doing the same back. He was dismissed on the spot. He woke up the next morning and assumed it wasn’t an actual dismissal, so attended work – only to be told by the owner that the dismissal stood.

Unsurprisingly, my advice to my client was that it was an Unfair Dismissal due to the complete lack of procedure. The employer had the potential, the next day, to remedy that defect, but chose not to. 

My client would almost certainly win such a claim, and the matter was settled after we issued proceedings. That employer had a policy in place about expected behaviour at work events but chose not to follow it. Not acting on the evening, and talking legal advice, would have avoided the majority of the claim.

2)  I acted for a Respondent Employer, who faced a claim for constructive dismissal, from an employee who resigned following the Christmas party. The employee resigned because of her drunken behaviour, then later, when realising her resignation affected the value of her bonus, alleged that the employer had deliberately wanted her to resign, and had magnified the allegations to do that. 

That employer took advice immediately, took statements from other employees, asked the employee to be sure about her resignation, then confirmed everything in writing. They were able to defend the allegations and reach a settlement on the bonus amount. In that situation, the advice was much more important than the policy, as the action was steered in the right direction.

The lesson from both of these examples is that putting a policy that deals with staff behaviour at external events is valuable, but without the correct advice on how to deal with specific situations, it may not be as relevant as the employer thinks.

The other situation, where a policy setting out standards, but in reality can affect the employer, is an allegation of sexual harassment, which I have seen happen and had to advise on as a result of staff parties. 

Most employers who have an anti-harassment policy have expectations set out, and a confidential reporting structure in place, often with the aim of attempting to avoid liability.

For an employer to have an allegation of harassment at a staff party, and then try and avoid liability by saying that the policy set out standards of behaviour expected, is destined to fail. The employer is running the event and their staff are there. That is why it is so important for those at a senior level, to be told what to do in the event of such issues arising, including direct intervention at the event itself.

The difficulty employers face is setting out expected standards of behaviour, and monitoring those standards, without being accusatory of staff enjoying themselves. This is why regular advice is so important, so that different scenarios can be discussed, and in particular how and when the employer should respond and act.

Please always take advice on any staff related issues.

365 Employment Law Solicitors

Tel: 01903 863284

ajones@365employmentlaw.co.uk

www.365employmentlaw.co.uk