A visit from St Nicholas or a visit from a judge?

xmas-partySarah Buxton discusses the important role the employer plays at Christmas parties.

‘Twas the night before Christmas, when all through work a creature was stirring and something sinister did lurk.’ Whilst not the traditional opening to the famous ‘visit from St Nicholas’ by Clement Clarke Moore, I increasingly find this revised verse a more apt beginning to the traditional Christmas poem. Whilst the festive period is usually a time of joy, goodwill to all, lashings of mulled wine and enough food to make your waistband expand by at least two sizes, for many employers it can become the terrifying beginning of their very own nightmare before Christmas. Apart from the Boxing Day hangover, what could possibly cast a dark shadow over this joyous time? Well the answer is simple, a claim at the Employment Tribunal.

Now, I am certainly no Scrooge, in fact, as the poem goes, my festive stocking is hung by the chimney with care, in hopes that St Nicholas will soon be there. However, as soon as the inevitable invitation to the Christmas party lands in my inbox, I know that a creature is stirring in workplaces across England and Wales.

The Christmas party is great for morale. Everybody enjoys dressing up in their glad rags, having a glass of bubbly and a nice meal. For many employees it is a chance to let off steam and socialise with the rest of the team at somebody, usually the employer’s, expense. Many employers believe the Christmas party rewards their hard working staff; others believe it is a right for employees to have such an event. Whatever the reason they are usually fun and full of festive cheer.

However, festive cheer can easily be lost when it all goes wrong and by January that lurking creature has stirred and I am dealing with a plethora of issues such as sexual discrimination, post party absenteeism, arguments and brawls all stemming from the Christmas party. So how do you prevent that lurking creature from stirring following your Christmas bash?

Whilst there is no guarantee that you can prevent an employment tribunal claim, there are a number of ways in which you can limit the risk.

An invitation to the ball

The invitation to the Christmas party should to be sent to all staff and should be extended to those who are on maternity/paternity or adoption leave. It should not be compulsory to attend and caution should be taken not to pressurise employees of non-Christian faiths. It is also important to ensure that there is a non-alcoholic drinks available, and if you are providing food, a vegetarian option is available to satisfy employees of all faiths.

Christmas time, mistletoe and wine

Many dental practice owners aren’t aware that the Christmas party is an extension of the working day, therefore as a result; an employer is still responsible for their employees at the Christmas party. With alcohol flowing, issues can occur such as an uninvited kiss or a lewd comment that is unwanted conduct on behalf of another. If such allegations are made it is important that an employer follows their own disciplinary process and ensures that the matter is thoroughly investigated. For this reason, I would strongly urge you not to be putting up the mistletoe.

Whilst you may brush it off as a terrible joke from a Christmas cracker, the compensation that can be awarded for harassment or any form of discrimination can be eye watering. In 2006, a female lawyer settled her case out of court for £1 million after a colleague made comments about her sex life and her appearance at the Christmas party saying she had ‘great baps’.

Up for promotion? Oh yes he is! Oh no he isn’t!

Don’t let your party become a pantomime. As we all know, alcohol can also be the cause of a loose tongue and as an employer, you need to be careful not to make any false promises such as promotions or pay rises.  There has been a case where an employee claimed his manager had promised to increase his salary during a conversation at a Christmas party. Following the Christmas party, the pay rise was never granted and the employee resigned and claimed constructive unfair dismissal on the grounds that the manager had broken a contractual promise. The Employment Tribunal found that the promise was too vague to amount to a binding contractual promise. This case could have easily gone the other way and in favour of the employee, so it should not be interpreted as meaning that things said at the Christmas party be intended to create legally binding commitments.

Your carriage awaits

After the party is over, it is the employer’s responsibility to ensure that employees get home safe and sound. This doesn’t necessarily mean that you need to provide transport for all members of staff but you should at least be aware of how people are getting home.  Further, you are responsible for the actions of your staff whilst they are getting home. In 2012, an employee punched a colleague whilst walking home after a Christmas party. The employer dismissed the employee for gross misconduct. The employee made a claim to the Employment Tribunal and tried to argue that the incident did not occur in work time and therefore was outside of his employment. The Employment Tribunal stated that the two employees were walking home together as a result of the Christmas party, which was in the course of employment.

Happy hangover

The morning after the night before, there always tends to be one member of staff who takes the opportunity to have the day off work following the Christmas party. It should be made clear before the Christmas party that any absence related to over-indulgence may be treated as a matter of misconduct.

Whilst I will admit, the above points do give the impression that I could give our old friend Ebenezer a run for his money, it is best to make sure that your Christmas is the enjoyable time it should be. To prevent your Christmas nightmare and to ensure that lurking creature doesn’t begin stirring, inform your staff of the standards of behaviour that are acceptable, remind them of your equality and diversity policy/anti-harassment policy and the season of joy and goodwill should be just that.

Happy Christmas to all, and to all a good night.

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