Is a Christmas tree in the office acceptable in November?

Spooky Season has come and gone, and with Halloween firmly behind us, it seems the festive cheer arrives earlier each year. Many feel it’s time to open the floodgates and embrace the Christmas spirit, while others insist that the first of December is the true gateway to the festive season.

Unfortunately, in the case Maher v University of Hertfordshire, employees in these opposing camps shared an office space and one employee believed that it was acceptable to erect a Christmas tree in the office in November. Her line manager disagreed.

The winter of discontent that followed ultimately led to one employee bringing direct race discrimination and harassment claims. In this legal update we will discuss what went wrong, and how an issue, as seemingly innocuous as the timing of festive decorations, can snowball into a nightmare before Christmas.

Background to Maher v University of Hertfordshire

In 2022 the Claimant was promoted to the role of School Administrator and Facilities Coordinator within the newly created School of Physics, Engineering and Computer Science at the University of Hertfordshire. She was line managed by Ms H, who reported to School Business Manager Ms R.

The Claimant asserted that, because she was of black African heritage, she was treated less favourably than her white colleagues and brought claims of direct race discrimination under the Equality Act 2010, and harassment related to race.

The Christmas Tree

One incident was a dispute over the office Christmas tree. On 21 November the Claimant emailed Ms R asking if she could set up the department Christmas tree. Instead of replying to the email Ms R approached the Claimant in the corridor and said that it was too early to erect the Christmas tree and asked her to wait until December. She later gave the green light on 2 December.

The Claimant asserted that Ms R had used a “loud voice” and that she had felt humiliated by the interaction in the corridor and that this amounted to harassment related to her race. Harassment related to race occurs when someone is subjected to unwanted conduct related to race, colour, nationality, ethnic or national origin, and that conduct has the purpose or effect of either violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

In order to determine whether the conduct is related to the protected characteristic, it is necessary to consider the “mental processes” of the alleged harasser. These mental processes must have been, “significantly influenced, consciously or unconsciously, by the relevant protected characteristic.”

The tribunal held that Ms R did not in fact use a “loud voice” and that it was a reasonable management instruction for her to say that she didn’t want the tree to be put up as early as 21 November. This conduct was only unwanted because the Claimant disagreed with Ms R‘s view. The Claimant had not shown, “facts from which the Tribunal could infer that discrimination took place, in the absence of another explanation” and that Ms R‘s decision and her communication of it, were not related to the Claimant’s race in any way. Even if Ms R’s conduct had been found to have been unreasonable, this alone is insufficient to infer discrimination; there must be “something more” for the tribunal to make this inference.

Other allegations

The Claimant made several other allegations which included the following:

• she was refused a change to her working hours so she could leave early, and that she was questioned unnecessarily about it;
• she wasn’t told about her probation review dates or role expectations;
• she was refused certain courses and prevented from completing training modules;
• she was given menial tasks while colleagues of different ethnicities were not;
• she requested an early finish for Christmas which was refused;
• she said she was told to tidy her desk and hand back her laptop on 23 December; and
• at a leaving party for a colleague, she started to eat food that had been provided by the university, before the colleague who was leaving had arrived. She said she was called “rude” by Ms R which she found demeaning.

The Claimant initially raised a formal grievance concerning her treatment by the university. After the grievance process had concluded, she subsequently resigned from her position.

In the tribunal’s view, the Claimant had interpreted “minor incidents of daily office life with limited ongoing impact” as discriminatory, but the evidence did not support the required link to her race. The tribunal found that the Claimant appeared to assume a racial motive and then sought to attribute evidence to fit that assumption, noting that she was “prone to exaggeration in her evidence.”

The Claimant in this case was represented by a friend and does not appear to have had any legal advice. Her claims were held to either be out of time or were dismissed.

Could tinsel timing be a “protected belief”?

Religion or belief is another protected characteristic under the Equality Act 2010, meaning that it is unlawful to discriminate against someone (or harass them) because they do, or do not, hold a particular philosophical belief.

For a philosophical belief to be protected it must meet the criteria set out in Grainger plc and others v Nicholson. The belief must be genuinely held, concern a weighty and substantial aspect of human life or behaviour, attain a certain level of seriousness and cohesion, and be worthy of respect in a democratic society. In the case of Grainger, the belief in manmade climate change was held to be a protected belief. Other examples of protected beliefs include voodooism, ethical veganism, belief in Scottish Independence and being opposed to fox hunting.

The protection for religion or philosophical belief covers not just holding a belief, but also manifesting that belief, meaning expressing or acting on that belief in the workplace. The courts have recognised that while holding a belief is always protected, manifesting it (for example, through actions or displays) can sometimes be restricted if that restriction is an objectively justified, proportionate response, for example if it undermines workplace equality policies or is likely to cause significant disruption or harm to other employees.

If someone’s desire to put up the tree in November is simply a matter of personal preference or festive enthusiasm, it’s unlikely to count as a protected manifestation of a protected belief. However, if an individual’s belief formed part of a wider, coherent philosophical or ethical framework, for example, a sincerely held view about the cultural or religious significance of early seasonal observance, or a structured belief system around the importance of ritual, symbolism, or tradition, it is theoretically possible that such a belief could fall within the scope of protection and the early displays of Christmas tidings could be a manifestation of that protected belief. The law requires a balance between employees being able to express their beliefs, but not in a way that unjustifiably impacts colleagues or the business.

Whether you’re itching to untangle your fairy lights or are a December purist, remember office festivities are best enjoyed with a dash of diplomacy to avoid a tribunal dispute over tinsel and to spread cheer, not grievances.