Halloween in the workplace: five legal issues to scare employers

While often associated with fun, some aspects of Halloween in the workplace can cause offence.
While often associated with fun, some aspects of Halloween in the workplace can cause offence.

Halloween is becoming an increasingly extravagant and high-profile event in the UK, having traditionally lagged behind US celebrations each October. Stephen Simpson rounds up five issues for employers related to Halloween in the workplace, covering everything from Pagan celebrations to fancy dress.

1. Discrimination against Pagans

Employers must avoid the temptation to take non-mainstream religious beliefs less seriously than the major religions.

The Equality Act 2010 simply defines religion as “any religion”, and does not state the belief has to be a major religion to be protected.

In the 2011 census, 57,000 people identified themselves as Pagan.

In Holland v Angel Supermarket Ltd and another, a Wiccan employee who claimed she was mocked and later dismissed after switching her shifts to celebrate All Hallows’ Eve won a religion or belief discrimination claim.

2. Discrimination by fancy dress

Employers commonly use fancy dress as a motivational tool during certain times of the year, for example when running themed sales days.

Costume controversies

In 2013, complaints led to retailers removing a number of Halloween costumes from sale.

Supermarket giants Tesco and Asda withdrew “mental patient” Halloween outfits after they were criticised for stigmatising people with mental health issues.

The Sikh coalition persuaded Walmart to withdraw an Osama Bin Laden costume because it perpetuated “negative stereotypes about turbans and beards”.

However, fancy dress has the scope to offend some groups, particularly if employees are given no option but to take part.

For example, a Halloween costume that stereotypes someone with a mental health problem, or from a particular religion or nationality, could lead to a discrimination claim.

Two successful employment tribunal claims demonstrate the problems that can occur when employees are expected to dress up at work.

In X v Y, the tribunal found that a gay employee was harassed at a workplace fancy-dress event that he could not opt out of and lent itself to banter of a sexual nature that could easily offend.

In Brown v Young & Co.’s Brewery, the tribunal found that a manager harassed a black pub worker when he told him that he “looked like a pimp” when he was wearing a promotional St Patrick’s Day hat.

3. Halloween-related misconduct

Employers may find that an employee commits misconduct during Halloween.

For example, an employee might bring inappropriate items such as fireworks into work, or use Halloween-related imagery in an inappropriate way.

The employee in Biggin Hill Airport v Derwich was dismissed after she placed an image of a witch as a screensaver on the computer of a colleague with whom she had fallen out.

4. Social media misconduct

These days, what employees post on social media can be as much of a concern for employers as what they do at work.

For instance, Welsh international rugby player Liam Williams apologised in December 2014 after he posted a picture on Twitter of himself at a fancy dress party “blacked up” as the footballer Wilfried Bony.

Employers should have in place a social media policy to make it clear that any inappropriate social use of the internet outside the workplace could result in disciplinary action if it brings the company’s reputation into disrepute.

5. Absence management

Halloween in the workplace: the view from the US

Halloween can bring up a host of workplace issues, explains US XpertHR legal editor Beth Zoller.

Employers should make it clear to employees that absence because of a hangover, or coming to work but being unable to function, following the Halloween weekend is unacceptable.

Before taking disciplinary action, an employer would need evidence that the employee was off sick as the direct result of a hangover, or came to work and was unable to perform his or her duties.

Some employers reserve the right to carry out random alcohol tests on employees, particularly in safety-critical industries.

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