Employees will often argue that what they do outside of office hours is entirely their own business even where they are partying at a venue hired by their employer and taking advantage of a "free" bar. The employer will disagree, and will wish to retain the right to discipline in the event of serious misconduct such as excessive drunkenness and/or violence.
But dealing with situations where objectionable behaviour does not cause offence to others is the easy part. Of more concern to employers is the fact that they can be held liable for the acts of their employees amounting to sexual or racial harassment which are "committed in the course of their employment".
Protestations by the employer to the effect that, "I do not pay my employees to harass others, even at office parties" have met with little success in that tribunals have recognised the paradoxical situation that, the more outrageous the behaviour, the more likely the employer would succeed in arguing that it was not committed "in the course of employment".
The case of Burton v De Vere Hotels raises an additional concern for employers. Here employees were made the object of racially and sexually offensive remarks by an after-dinner speaker in the banqueting room of a hotel owned by the employers. The Court of Appeal held that an employer can be held liable for harassment which occurs in circumstances over which they have control – even where the harasser is not an employee – unless they can show that they took all reasonable steps to prevent that harassment taking place.
Before the party
No employer wants to be seen as a killjoy, but it is in everyone’s interest to prevent problems occurring in the first place. This involves dispelling the traditional notion that "anything goes" at an office party and that all will be forgotten the next day.
Employees should be made aware, either verbally or preferably in a written policy, that harassment of colleagues or others at an office function will have consequences which may even mean dismissal. Alcohol is often at the root of problems and it should be stressed that, although employees are not expected to remain sober, they will be unable to use drunkenness as a blanket excuse for misconduct. The employer should also ensure that entertainment for the event is not likely to offend those present.
After the party
In addition to the possibility of dealing with incidents of, for example, drug-taking, fighting and excessive drunkenness, an employer may be faced with a complaint from an employee or third party. Here, the employer must ensure it considers each complaint on its individual circumstances and that the proper disciplinary procedures are followed before any action is taken.
Employers will need to bear in mind any mitigating factors put forward by the employee together with any aggravating factors such as where harassment involves aggression or where it is directed towards someone in a more junior position. It should also be borne in mind that failure to deal effectively with a complaint of harassment could lead to a claim of sex or race discrimination or even constructive dismissal.
By Linda Farrell, a partner at Bristows, firstname.lastname@example.org