What not to do at the office Christmas Party – Employment law considerations

T’is the season…, all over again, and soon Christmas events will start to overwhelm diaries as the year draws to a close. The office party can be a great opportunity to bond with colleagues in an informal setting and say thank you to employees for their hard work over the preceding 12 months. However, mixing alcohol, diverse personalities and a sprinkle of underlying workplace tension might not be a recipe for Christmas cheer for employers and can leave HR with a headache that had nothing to do with the mulled wine.

Join us for a sleigh ride through the relevant case law involving office parties that employers and employees alike may wish to take heed of. Here are some dos and don’ts for employees when attending an office function and some considerations for employers to avoid the naughty list if these scenarios do arise. Learn from the mistakes of others; here is what not to do at the office Christmas party…

Do not fight with your colleague

In Westlake v ZSL London Zoo two women, a meerkat handler and a squirrel monkey specialist, had been competing for the affection of a llama keeper, referred to in the media as the Llama Lothario. At the Christmas party, an altercation broke out between the women after one insulted the outfit of the other in the ladies bathroom. The offended employee later threw a glass of wine at the other; the Llama Lothario was unscathed.

Although the lead up to the incident is comical, the wine glass made contact with monkey specialist’s face, cutting her. In the aftermath, ZSL London Zoo commenced their disciplinary procedure, however, there was difficulty in establishing what happened as both employees claimed that the other initiated the violence. There were no eyewitnesses, and a person who overheard the fight attested to hearing both employees “slagging each other off.”

ZSL London Zoo dismissed the meerkat handler, who had thrown the wine, but gave her opponent a final written warning. The meerkat handler brought a claim arguing that she had been acting in self-defence and that the wine glass had left her hand by mistake due to her dyspraxia. She brought a claim for unfair dismissal as her punishment was greater than that of her adversary and direct disability discrimination as, compared to the treatment of her opponent who did not have dyspraxia, she was treated less favourably. The tribunal held that no reasonable employer would, in circumstances where the exact facts could not be determined, dismiss one employee and not the other potential wrongdoer, as such, the meerkat handler had been unfairly dismissed. The claim for direct disability discrimination failed because the tribunal was not satisfied that the meerkat handler was dismissed because of her dyspraxia and indirect discrimination was not pleaded. It is relevant to note that although she won her case the tribunal held that the reason for the finding was the differentiation in treatment not that the decision to dismiss the meerkat handler was itself unfair. The ZSL London Zoo should have dismissed both employees as once the fight started, neither held back.

The case serves as an important warning to employers that should a situation arise where the facts are not clear, and they are reliant on conflicting accounts, then care should be taken to ensure that there is parity of treatment for all involved.

Beware the ‘after-party’

In the case of Bellman v Northampton Recruitment Ltd it was held that an employer was liable for an assault that occurred at the after-party to the Christmas party with an important factor being the identity of the individual who ‘organised’ the after party and the fact that it was paid for by Northampton Recruitment Ltd.

Mr Bellman was employed by Northampton Recruitment Ltd. Mr Major was a statutory director, the Managing Director and described in the judgment as being, “the directing mind” of the company. Northampton Recruitment paid for the Christmas party, including food and alcohol for all members of staff, along with taxis and accommodation at the nearby Hilton Hotel for some employees. All seemed merry and bright until around midnight when Mr Major invited employees back to the Hilton Hotel for further drinks and an unplanned after-party. The majority of the drinks at the hotel were paid for by Northampton Recruitment via Mr Major. At around 2 am Mr Major became aggravated and after a lecture to the employees at the hotel, that is difficult to quote given Mr Major’s use of profanity, he punched Mr Bellman. The Tribunal recorded that Mr Major was “significantly inebriated.”

The Employment Appeal Tribunal held that Northampton Recruitment was vicariously liable for actions of Mr Major despite the venue change and attendance at the after-party being voluntary, “the drinking session must be seen against the background or in the context of the evening’s events”. The after-party occurred on the same evening as the work event which had been paid for and orchestrated by Mr. Major on behalf of Northampton Recruitment. Mr. Major had already been fulfilling his managerial duties having orchestrated the party, he organised and paid for the taxis to the hotel and continued to provide drinks which were to be paid for by Northampton Recruitment. Viewed objectively in that context, Mr. Major was not merely a fellow reveller and had decided to wear his “metaphorical director’s hat.”

Do not attempt the Dirty Dancing lift!

Too many alcoholic drinks may result in some party goers being a little over ambitious. In Shelbourne v Cancer Research UK the Cambridge Research Institute of Cancer Research UK (“CRUK”) held a Christmas party at their premises. Alive to the risks associated with a Christmas party held in a venue that contained a working laboratory, the organisers conducted a risk assessment and engaged extra security staff. Their primary concern was that party goers would attempt to re-enter the laboratory after consuming alcohol. The party was a ticketed event requiring employees to purchase tickets in advance or on the door on the night.

The CRUK invited a scientist employed by the University of Cambridge who had been “drinking from at least an early stage of the party, if not before it began” and had brought a bottle of vodka with him. At some point the scientist began lifting women on the dancefloor. Three women were lifted safely but when he attempted to lift the fourth, Miss Shelbourne, he lost his balance and dropped her causing her to sustain a serious back injury.

Miss Shelbourne brought a claim against CRUK for negligence and argued that CRUK was vicariously liable for the injuries that she sustained. Given the availability of alcohol, Miss Shelborne contended that more thought should have been given to what may happen should attendees behave inappropriately and that the CRUK should have asked attendees to sign a written declaration that they would behave and it should have provided training to staff responsible for the risk assessment. CRUK argued that they could not have foreseen that the esteemed scientist would get that drunk and the organiser had not prohibited guests bringing their own alcohol into the event because they had thought the party goers might know better.

The High Court held that the scientist’s connection to the CRUK was his research and that attending the event was not sufficiently connected with any engagement with CRUK to give rise to any vicarious liability. It was held that whilst the CRUK did owe Miss Shelborne a duty of care, the steps that Miss Shelborne asserted that the CRUK should have taken would have set the standard of care unreasonably high, and “seriously understates the motivation and autonomy of those attending the party.”

Nonetheless, the CRUK’s risk assessment was heavily criticised for not satisfactorily assessing the risk that that an injury may result if guests drink too much alcohol. If, “alcohol-fuelled intimacy” was going to be encouraged, an employer needs to take time to consider the ramifications. That would suggest that the outcome may well have been different had it been an employee of CRUK lifting staff, rather than the invited scientist.

What can an employer do?

An employer should consider the following:

• Communication – the standards of behaviour should be communicated to all in attendance at the party. This may include bringing internal policies to the attention of employees and third parties such as guests or plus ones.
• Risk assessment – employers should be making a list of hazards and checking it twice to ensure that a comprehensive risk assessment is being carried out. If alcohol is going to be provided, an employer must consider the risk that employees drink too much. Real thought needs to go into the assessment and precautions taken; each environment, employer and event will be different, and a pre-existing assessment should never be simply copied.
• Sexual harassment – employees may feel less inhibited at the Christmas party which can lead to other employees experiencing unwanted conduct. Party organisers need to be alive to this sad reality and employees who are subjected to such treatment should be made to feel that they can complain about conduct they find offensive.
• Provision of alcohol – at the prearranged party it may be easier to limit the amount of alcohol consumed, but should the party move elsewhere, this may be harder to control, and the safety of employees may be at risk. Try, where possible, to avoid this complication and make it clear when the employer sponsored event finishes and that ‘after parties’ are not encouraged and the employer will not be responsible for the cost or consequences of any ‘after party’. An employer should also provide soft drinks and employees should never be made to feel as though they have to consume alcohol.
• Conduct of senior employees – remind managers that many employees will follow their lead and may misconstrue their actions as the company condoning bad behaviour. Managers should, wherever possible, avoid talking about performance or remuneration with employees that they manage especially under the influence.
• Keep an eye – monitor behaviour of employees especially if it appears they have consumed too much alcohol and if concerns arise, deal with them swiftly.
• Investigations – if events do not go as planned, ensure that a through and fair investigation is carried out and as far as possible, the employer should ensure that the investigation into the allegations is kept confidential, while balancing the need to obtain evidence from witnesses.

The Christmas party should be a place of comfort and joy for all employees. If things do not go to plan employers may find themselves jingling all the way to an employment tribunal and on the whole employees may prefer not to receive a P45 in their stocking.

Should you require advice in relation to any of the matters raised in this blog, please contact Linky Trott or any other member of the Employment team.

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