HAVE A MERRY, “CLAIM FREE” CHRISTMAS
Most workplaces will have some form of event to celebrate the festive season but make sure from a company perspective it is a merry but claim free Christmas.
After all we really want Santa to bring us Christmas presents and not employment tribunal claims from employees.
The Christmas period can be an enjoyable time for employees in the workplace with social events, heightened spirits and a slowdown in the pace of work. Work Christmas parties are a good way to boost staff morale and make employees feel appreciated. However, there are a number of important legal factors to bear in mind as the festive season approaches.
Here are a few thoughts to help keep you claim free:
Alcohol- This has to be one of the most serious considerations. The right decision is not to allow any alcohol however this may not go down to well with your staff.
If you decide to allow alcohol then be aware of the risks and consider limiting the number of free drinks. Also be prepared to send an employee home if their conduct gets out of hand.
Always remember you are responsible for your employees actions that also may cover situations after they leave the party to go home.
Discrimination - Religion - Be careful not to discriminate against non-christian staff.
Disability- Make the venue accessible and not put disabled employees at a disadvantage.
Sex and Age – Be aware of any banter that may go beyond a joke for an individual. It could potentially be discriminatory if it singles particular characteristics.
Harassment - Be aware of sexual harassment and unwanted conduct. Employers are liable for any discriminatory actions of its employees.
Policies - Ensure up to date equal opportunities and anti-harassment policies are in place.
You may also want to consider implementing a “Conduct whilst on Company Business Policy” to cover you specifically for this type of social event. You need this documentation in place to protect your organisation and CoLaw will draft these for you.
Monitoring - Designate certain senior staff to monitor events.
Health & Safety - Companies should take steps to ensure the party does not present Health & Safety risks eg hazards at the party and consider how employees are getting home ie use of public transport and taxis.
If employees drink alcohol at a company event either on your premises or advisably at another venue you are responsible for them so ensure staff that drink do not drive home.
The Morning after… Consider how to deal with employees who are absent. Make it clear before that you are entitled to treat the unauthorised absence as a disciplinary matter.
Having considered the above the following adds more detail around this contentious subject.
There are a number of possible discrimination aspects to consider when organising and holding a Christmas party.
Religion - The Employment Equality (Religion or Belief) Regulations 2003 outlaw certain discrimination, harassment and victimisation on grounds of religion or belief. So Christmas parties could discriminate against non-Christian staff if their religious festivals are not also celebrated.
However, that said, it seems unlikely that an employment tribunal would be willing to decide that the holding of a Christmas party in itself constitutes religious discrimination. This is because Christmas parties are not really about celebrating religion. Instead, they are about improving staff morale and loyalty and thanking employees for all their hard work and efforts over the previous year.
However, as there is no case-law on this point at present, it is possible that a non-Christian employee may argue that the office Christmas party discriminates against them because their own religious festival is not also celebrated by the employer.
Be careful to take the different religions into account when planning the event. Is the venue suitable and the date acceptable? Is the chosen theme or entertainment likely to cause offence to anyone? Will a choice of non-alcoholic drinks be provided? Does the menu accommodate particular dietary requirements and is there a vegetarian option available?
Harassment
Sexual Harassment - The most likely claim to arise as a result of a Christmas party is for harassment, usually sexual harassment. Since April 2008, the definition of sexual harassment has been widened.
It is defined as occurring where “A” engages in unwanted conduct related to “B”’s sex or that of another person that has the purpose or effect of violating “B's” dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for “B”. As a result of this change, an employee complaining of sexual harassment is only required to show that the alleged treatment was connected or associated with sex and not that it took place because the complainant was a woman. This change means that claims can now be made if the unwanted conduct is related to the sex of the victim or any other person, thus enabling associative claims such as claims by witnesses.
Other Types of Harassment - All of the other pieces of discrimination legislation also contain a definition of harassment. It is defined as occurring where “A” engages in unwanted conduct on the grounds of B's race, disability, sexual orientation, religion or age that has the purpose or effect of violating “B's” dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for “B”.
Conduct shall be regarded as having that effect only if, having regard to all the circumstances, including in particular the perception of the complainant, it should reasonably be considered as having that effect. The intention is that an over-sensitive complainant who takes offence at a perfectly innocent comment will not be considered as having been harassed for the purposes of the legislation, although tribunals will give regard to the subjective perception of the complainant.
Employers are liable for the discriminatory actions of their employees carried out 'in the course of employment'. Discrimination legislation states that any act committed by an employee in the course of their employment is to be treated as also being committed by their employer - regardless of whether the employer knew or approved of the action. Whether or not an act of discrimination is carried out in the course of employment is a question of fact to be decided by tribunals on a case-by-case basis. However, discriminatory acts that take place at a Christmas party that is organised or funded by the employer are highly likely to be held as having been carried out in the course of employment, as it is an extension of the workplace.
Forcing employees to dance, making lewd remarks or comments about their dress and becoming over-familiar on the dance floor could all constitute harassment.
Policies and documentation - However, employers have a defence if they can show that they have taken reasonably practicable steps to prevent the discrimination or harassment from occurring. This is known as the “statutory defence”.
Employers who wish to be able to take advantage of the “statutory defence” should:
• Ensure that up-to-date equal opportunities and anti-harassment policies are in place, which clearly state that conduct at work-related events such as Christmas parties is covered, even if the event takes place out of office hours or off the premises.
• Ensure that the policies have been distributed to all employees and that they are made aware of and understand the issues covered by the policies.
• Ensure that all employees have received training on equal opportunities and the types of behaviour that constitutes unlawful discrimination and harassment.
• Send a statement to all employees in advance of the Christmas party, setting out the standards of behaviour and conduct expected from them, what types of behaviour are not acceptable and the consequences of inappropriate or unlawful conduct, which in most cases will be disciplinary action up to and including summary dismissal depending on the circumstances of the case. In the statement, remind employees that alcohol should be consumed in moderation and they should not drink and drive.
• Designate certain senior (sober) members of staff to monitor events on the night to ensure that things do not get out of hand. Senior members of staff should be setting an example to other employees and their behaviour should be monitored in much the same way as other more junior employees.
• Bear in mind their duty of care and consider limiting the number of free alcoholic drinks and take steps to send an employee home (preferably in a licensed taxi) if their conduct gets out of hand.
Employers have a general duty under the Health and Safety at Work etc Act 1974 to ensure, as far as is reasonably practicable, the health, safety and welfare at work of their employees.
This duty is likely to extend to social events associated with work where they are organised or hosted by management. In addition, employers have a duty to carry out an assessment of the risks that the workplace and its operations might pose to its employees and others.
Again, if an event is closely associated with work (even if it takes place at an alternative location), this duty may still apply.
Employers should therefore take steps to ensure the party venue does not present any health and safety risks, and that employees do not put themselves or other people at risk either during or after the party. Employees should be notified of any particular hazards identified in advance.
In addition, consider matters such as how employees will get home after the party. If they will not be driving, advise your employees to ensure they have made arrangements in advance to get home, for example by public transport or licensed taxi – and provide the numbers of local taxi firms.
Under health and safety legislation, employees themselves have a general duty to take reasonable care of their own health and safety and that of other people who may be affected by their acts or omissions at work.
If an employee fails to attend for work the day after the Christmas party, employers are entitled to treat the unauthorised absence as a disciplinary matter.
Warn employees beforehand that if they are absent from work without good reason, this will be treated as a disciplinary issue in much the same way as other types of unauthorised absence. However, it is more likely that an employee will phone in sick rather than simply failing to attend work.
While an employer might suspect that an employee is malingering or hung over, it is important to clarify the reason for the employee's non-attendance before acting against them. Clearly, if an employer has evidence to suggest the employee is not genuinely sick, they may treat the absence as a disciplinary matter. However, unfortunately, mere suspicion based on circumstantial evidence is not enough.
It is important to ensure that all employees are treated consistently to reduce the risk of any potential claims for discrimination or constructive unfair dismissal.