It’s important to remember that while a Christmas knees-up is a great way to end the year on a positive note and thank employees for their hard work, these parties are an extension of the workplace and take place ‘in the course of employment’ (a phrase used in employment legislation). This means employers continue to owe a duty of care to their employees and may remain responsible for their wrongful actions (despite the fact that they are not at their usual place of work).
The best way to avoid the pitfalls is to be aware they exist, and, wherever possible, to navigate around them with careful planning. This three-point plan should help.
Alcohol can lower inhibitions and bring out the worst in people. Employers could find themselves liable for acts of assault, discrimination, harassment and/or victimisation carried out by their employees in the course of employment.
Whether or not an employer is responsible for the actions of its employees (vicariously liable) is determined by a tribunal. It will consider what functions or activities were entrusted to the employee, whether there was a sufficient connection between the position in which they were employed and their conduct, and the extent to which the employer has created a material risk of harm.
Given the current direction of travel in the courts of making employers, and, by default, their insurers, liable (whether for tortious acts, or data protection breaches), businesses would be well advised to make ‘minimising exposure to vicarious liability risk’ a business resolution. Take all reasonably practicable steps to prevent such acts or omissions from occurring by, for example:
- Maintaining relevant policies and procedures (e.g. an equal opportunities policy, a policy on work-related events), training staff in relation to these, and making sure management know what to do if an incident occurs.
- Setting out clear guidance for all employees about acceptable standards of behaviour and reminding them that social events, such as the work Christmas party, are an extension of the workplace.
- Being mindful of clients and customers too. Vicarious liability can extend to the behaviour of third parties such as clients and customers (provided they are under the control of the employer).
- Ensuring you have current, sufficient, employers’ liability insurance with a reputable provider.
If you are taking on new staff or increasing the hours worked by your existing workforce during your business’s peak period, don’t short-cut normal recruitment and internal processes.
Employee document checks for new (and existing) staff are important (especially given the risks if you get it wrong). If staff have any restrictions on their right to work, or the number of hours they can do, then you, as employer, need to comply. Remember to retain evidence of the check being carried out properly, so you can rely on the ‘statutory excuse’ should anyone be found to be working illegally.
- In terms of existing staff, it’s worth checking employment contracts and applicable policies now.
- Does an employee’s contract require them to work overtime when required?
- Do your policies explain what will happen if an employee does not turn up to work on the morning after the office party?
- Do you know who (if anyone) has booked holiday over the festive period, and are you confident that you can manage without them?
Allegations of religious, disability or sex discrimination are commonly faced by employers at this time of year, but there are steps you can take to prevent them:
- Remember your policies and procedures and don’t disregard them just because it’s more hectic than usual.
- Be mindful and respectful of people’s beliefs and circumstances. Some may choose not to attend the Christmas party on religious grounds, whereas others may have family responsibilities which may prevent them attending.
- Be sensitive to employees who do not drink alcohol or who do not eat certain foods by ensuring you cater for them too (e.g. by providing non-alcoholic drinks and alternative food options).
Finally, try and have some fun. Christmas should be a time of games and happiness, both in and outside the workplace.
Heena Kapadi is an employment solicitor at HRC Law