22 November 2017

How to ensure acceptable conduct at Christmas office parties

Introduction
Office parties, employers and employees either love them or loathe them, but they remain a feature of most people's employment. They range from a small social gathering in the pub after work at the end of a stressful day to the full-blown Christmas party where the alcohol flows freely all night. Unfortunately, while many employees will use it to let their hair down completely harmlessly, the office party may represent trouble for a small minority. Employers need to be proactive in ensuring acceptable conduct as they could find themselves vicariously liable for the actions of their employees if those actions are deemed to have been committed "in the course of their employment", whether or not they were done with the employer's knowledge or approval.

Vicarious liability
The common law principle of vicarious liability, which applies to cases of negligence, is, in principle, quite separate to the wider, statutory test for employers' vicarious liability for the acts of their employees under the discrimination legislation. In relation to the discrimination legislation, the courts have for a long time taken a very wide view of what is "in the course of employment". However, recent court decisions on negligence have narrowed the gap between the tests and there is now little in
practice between them. Thus, as the law now stands, employers can find themselves vicariously liable in either negligence or under discrimination legislation for acts that they may consider to be completely outside their responsibility. One of these areas relates to office parties and other work-related social events.

If a social event can genuinely be classed as an extension of employment, the employer might find that it is held vicariously liable for either acts of discrimination or acts of negligence committed by its employees at the event. This would include incidents at office parties, client functions, work conferences and work-organised social events such as leaving parties.

It would probably not cover an incident when a couple of colleagues met up informally with other friends for a beer at the weekend; neither would it cover a chance meeting in the street between two employees that ended in a fight. In between these categories, there are obviously a number of grey areas that have yet to be the subject of binding case law. Where an event took place, whether it was during working hours or not, and who attended it will influence an employment tribunal's decision as to what is "in the course of employment". There needs to be a clear link between the employment relationship and the off-duty conduct for it to become the employer's legitimate concern.

The employer's defence
Employers should be aware of the risk of liability for discrimination on any of the protected grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation (although employees cannot bring a claim for harassment relating to pregnancy and maternity or marriage and civil partnership). Under the Equality Act 2010, there is a defence for an employer if it can prove that it took all reasonable steps to prevent the employee from doing the discriminatory act complained of, or from doing acts of that description in the course of his or her employment. With negligence, if the employer can show that a particular act was expressly prohibited, this should also help its case.

The key for employers is therefore to be proactive and take sufficient steps to minimise the risk of being held vicariously liable. They can no longer expect not to face the consequences of occurrences at the office party of offensive jokes, fighting or other unacceptable behaviour.

Policy on conduct at work-related social events
In advance of office parties, employers should provide clear written guidelines to members of staff setting out the standard of behaviour expected of them at such events. A short policy will be useful for this purpose. After its initial promulgation, it can then be reiterated by email prior to each major social event, such as the summer ball or the Christmas party.

The policy should highlight what behaviour is considered inappropriate and unacceptable and what the disciplinary penalties will be for breach of the rules, including possible summary dismissal if the offence is one of gross misconduct. Although it is probably unreasonable to expect employees at an office party to remain completely sober, the policy should state, in particular, that alcohol should be consumed in moderation and that staff should behave in an appropriate, mature and responsible manner.

Unacceptable behaviour that might result in a gross misconduct dismissal would include excessive drunkenness, the use of illegal drugs, unlawful or inappropriate harassment, violence, serious verbal abuse, or assault of either another employee or a third party such as a guest or a member of the waiting or bar staff. Employees should also be warned that they are required to take steps to ensure that they are well within the legal limits if they are going to be driving home after an event.

In practice, the two most common forms of unacceptable behaviour are alcohol-induced aggressive behaviour and sexual harassment. Employers should check that their anti-harassment policy either cross-refers to their policy on conduct at work-related social events or includes work-related social events within its remit. When investigating allegations of harassment, employers should bear in mind that, while unreasonable, unwanted and offensive conduct cannot simply be excused even if it is a one-off occurrence, because of its nature, an office party affords more opportunity for misunderstanding than the normal office environment. On the other hand, in some cases, a campaign of harassment can be based on incidents both at work and at social events so it is not safe to assume that something that happened at an office party was simply a one-off occurrence.

It is well known that alcohol loosens tongues and employees are more likely inadvertently to discuss secret company business with either fellow employees or outsiders when under its influence. Therefore, staff should be warned of the risks and consequences of this type of behaviour in the policy document.

Monitoring
At the event itself, employers should make sure that two or three managers take responsibility for monitoring the activities of members of staff and their intake of alcohol. These managers should work with the hotel, pub or serving staff to ensure that employees who have had too much to drink are refused further service. They must also be prepared to take employees to one side and warn them that they are behaving inappropriately or that they have had too much to drink so must not order any further alcohol. They might even have to be prepared to ask an employee to leave. Members of staff should be made aware in advance of the identity of the supervisory managers and advised that, if they experience any problems during the evening, they should report these to one of the relevant managers.
Employers will not have much of a defence if they have turned a blind eye to an employee's becoming completely inebriated or indeed if they have even encouraged it by providing a free bar. It is a sensible option for them to limit the amount of free alcohol provided.

Liability for the actions of third parties
Office parties are not always self-contained. They often involve interaction with other people, such as guests, clients, other members of the public, entertainers, and waiting and bar staff. Unwanted conduct may come not from an employee but from one of these third parties.

Prior to 1 October 2013, under s.40 of the Equality Act 2010, employers could be liable for third-party harassment related to age, disability, gender reassignment, race, religion or belief, sex and sexual orientation in certain circumstances. The Act required employers to take reasonably practicable steps to prevent their employees being subjected to such harassment.

Notwithstanding that s.40 was repealed on 1 October 2013, employers should continue to take steps to prevent third party harassment. Aside from the fact that avoiding any type of harassment is clearly in the interests of both employees and employers, there are a number of potential claims that an employee subjected to third-party harassment could bring. For example, an employee could resign and claim constructive dismissal on the ground that the employer's failure to protect him or her amounts to a breach of contract. An employer could also be liable for negligence if the employee suffered mental and/or physical injury because of harassment by a third party that the employer could reasonably have foreseen and prevented or reduced. There is also potential for an employee to bring a claim under the general harassment provisions of the Equality Act 2010.

Entertainers and party venues should be carefully chosen to ensure accessibility to all and to minimise the risk of causing offence.

Source: Claire Birkinshaw, XpertHR, November 2017