Can we discipline an employee for being drunk at the Christmas party?
Expecting staff to remain sober, particularly if the employer is providing some or all of the drinks, may be unreasonable. If proposing to dismiss a drunken employee, it must be shown that genuine business interests were threatened by their behaviour, and that adequate investigations were conducted. Whether the dismissal is fair will depend on whether the nature of the misconduct was sufficiently grave.
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However, even when an employee commits a serious act of misconduct, if the employer has condoned or encouraged drinking, this may be seen as a mitigating factor. Make it clear to all employees prior to the Christmas party exactly what behaviour is and is not acceptable.
What can we do if an employee is caught taking drugs at the party?
An employer may argue that its reputation has been or will be damaged by the employee’s conduct, or that its trust and confidence in the employee has been undermined. They could therefore begin disciplinary proceedings, which might result in a dismissal for gross misconduct.
It will also be relevant that a criminal offence has been committed. In Focus DIY v Nicholson, an employee was dismissed for smoking cannabis in the presence of junior staff at a company social event. The dismissal was held to be within the band of reasonable responses open to the employer as she was in a position of authority, which was undermined by her actions.
Are we discriminating against non-Christian staff by holding a Christmas party?
Employers can face discrimination claims if they do not take different religions into account when planning their Christmas party. A claim has not yet been lodged, but focusing on one Christian festival has the potential to cause offence. Location, theme, timing and catering should all be carefully considered, and a choice of non-alcoholic drinks and vegetarian options are a must. Knowledge of the workforce’s requirements is therefore vital.
Can we discipline an employee for unauthorised absence as a result of a Christmas party?
In general, employers are lenient with staff returning to work after a Christmas lunch. However, the company’s position should be made clear to all employees, particularly those who work on a shift pattern, or have been contracted out to work for a client.
In Ardyne Scaffolding Ltd v Rennie, some colleagues left the work site and went to a pub the day before the Christmas holiday was due to start. Rennie returned to work clearly the worse for wear. The employer regarded this as gross misconduct, and he was subsequently dismissed.
Although the Employment Appeal Tribunal (EAT) found the dismissal to be unfair, it cut Rennie’s compensation by 75% for blameworthy conduct.
Would the company be liable for the actions of an employee who harassed another member of staff?
An employer can be held liable for the actions of an employee, even if the harassment occurs outside working hours. ‘Harassment’ includes behaviour that is sexual in nature, as well as harassment on the grounds of someone’s sex.
Comments made at a Christmas party that are intended to be good natured but are perceived by an individual to be offensive, could result in a claim. In one case, a senior City lawyer admitted mentioning in public that a 29-year-old female solicitor had a “great cleavage” and “great baps”.
The comments were made during an office Christmas party, but ended up in a tribunal. The case settled out of court for 1m.
How can we prevent harassment at the office Christmas party?
Even where harassment has taken place, the employer will not be liable if it can show that it took reasonably practicable steps to prevent it from occurring. Implement clear equal opportunities and anti-harassment policies and update them to include new areas of discrimination. They should have management backing and be supplemented by training. Grievances should be taken seriously and consistently. Issue behaviour guidelines and warn staff of the potential consequences of unacceptable behaviour.
A manager drunkenly told an employee that she could have a Christmas bonus – can he retract this statement without risk of liability?
In the case of Judge v Crown Leisure Ltd, an employee claimed that he had been promised a substantial pay rise by a manager towards the end of the evening at the company’s annual dinner and dance. The EAT concluded that, considering the environment in question, the manager would not have intended to enter into a legally-binding contractual commitment. However, other legal decisions may not follow this precedent, and hollow promises made at social events could end up having significant and costly consequences.
Alison Love, employment partner, Hugh James Solicitors