Christmas parties can lead to costly claims for employers if they are not
wise. You needn’t be a party-pooper, but sort things out before the festivities
get into full swing
The Christmas party season has arrived. But it is bound to leave many
employers with headaches, if not hangovers.
Should they throw a bash at all? 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
Employers also have health and safety obligations. Check venues for
suitability, such as fire exits, disabled facilities, and catering for various
Employers will be vicariously liable for staff behaviour at events during
the course of their employment. This can cover Christmas parties – including
those held off work premises and outside working hours.
In discrimination cases, employers have a defence if they had taken
reasonably practicable steps to prevent the discrimination from occurring. To
reduce the risk of liability, notify staff beforehand of the behavioural
standard expected at the Christmas party, and stress that misconduct may result
in disciplinary action.
Sexual harassment is an obvious risk, and employers should do more than
confiscate the mistletoe. Staff should understand that inappropriate behaviour
and comments – particularly relating to sex, sexual orientation, race,
disability, religion or belief – are unacceptable, and may amount to
In Burton and Rhule v De Vere Hotels (1996) IRLR 596, an employer was held
liable for the harassment of its staff by a speaker, as the employer could have
controlled his actions. Burton has since been criticised by the House of Lords,
but entertainers should still be vetted and stopped if they are offensive.
Charge someone senior (preferably a tea-totaller), to monitor events and
intervene if things get out of hand, and inform other staff of who this person
Free bars encourage excessive drinking. Limit free alcohol, provide plenty
of soft drinks and intervene if staff drink too much.
Remind staff to make safe travel arrangements home, and prohibit
drink-driving. A Canadian employer was held partly responsible for a crash
injury sustained by a worker driving home drunk from the Christmas party. The
employer had offered to call her husband, and also to pay for a taxi, but this
was not enough – it had a duty to take positive steps to stop her from driving.
If you believe someone is over the limit, take their car keys, call a
cab/partner to collect them, or persuade someone sober to take them home.
Disciplining staff for being tipsy at the party would be harsh unless there
were safety concerns (such as the impact on operating machinery) or they were
pre-warned to abstain. But if someone fights, is offensive or brings the
business into disrepute, for example, there are grounds for disciplinary
Following proper disciplinary procedures will be even more important by next
Christmas, as statutory disciplinary/dismissal procedures will apply. Failure
to follow them could result in automatic unfair dismissals and substantial
Many take the day after Christmas parties as holiday, while others call in
sick. Staff can be warned that disciplinary action may be taken against
unauthorised ‘no-shows’. But withholding pay without investigation could amount
to a breach of contract.
Before saying ‘Bah humbug!’ and cancelling everything altogether, remember
that Christmas parties can boost morale and loyalty. And the Inland Revenue
allows employers to spend up to £150 per head on Christmas parties without tax
or national insurance liability, so get spending.
By Sarah Johnson, Partner, Manches