9 out of 10 employers have had an employment issue arising from a Christmas party


The office Christmas party is often the one time of year when all employees are brought together in a social environment, usually with liberal amounts of alcohol thrown into the mix. Generally, the outcome is positive; colleagues get to know one another, make friends, and harmony is promoted. That is not, however, always the result. Sometimes long-harboured acrimony towards a co-worker is released like a foul-mouthed party-popper in front of shocked onlookers. The ‘new guy’, may imbibe some ‘liquid courage’ to face the evening and end up ‘twerking’ against the Managing Director, or staff may engage in the ‘creative’ use of the photocopier, a Christmas party classic. In fact, it has been reported that 9 out of 10 employers have experienced an employment issue arising from a Christmas party, and 1 in 10 employees knows someone that has been disciplined or dismissed for an incident connected to the office festive celebration.

Here are our top tips to help ensure the Christmas party goes swimmingly and you do not end up in front of an Employment Tribunal in 2014:

Remember that Christmas parties are an extension of the workplace

The case of Chief Constable of Lincolnshire v Stubbs [1999] involved two incidents which took place between police officers at social events outside work. The first was a night out at a pub and the second was a leaving do.  The Tribunal, and Employment Appeal Tribunal (EAT), held that neither event was an informal gathering. The two officers would not have attended the events had it not been for the work connection, and they were both therefore an extension of the workplace.

Pre-party Communications

Aside from details such as dress-code, time and venue, employers should provide employees with a gentle reminder that the Christmas party is an extension of the workplace and that certain standards are expected of them.

There are several cases where one employee has overstepped the mark at the office Christmas party and the employer has been successfully sued for sexual harassment. In such circumstances the employer will be required to pay out an award for injury to feelings.

The way for employers to avoid such penalties is to show that they took all reasonable steps to prevent the employee’s behaviour, for example, by sending the pre-party communications discussed above, or by giving the employee training on equality and diversity.

It was the vodka talking…

In Judge v Crown Leisure Ltd [2004] an employee resigned following a failure by his boss to honour a “promise” made at a Christmas party that his pay would double over the next two years to be in line with a colleague’s. His pay did go up by 68% over this time but he wasn’t happy and resigned, claiming that his boss had breached his contract by failing to honour the promise. The Tribunal found that the statement had been made in the “convivial spirit of the evening” and was not intended to be legally binding. This was upheld by the EAT.

Even so, the whole affair cost time and money in litigation, so perhaps it’s best to avoid conversations that should really be taking place in the office.

Inappropriate behaviour

And of course there is always ‘ordinary’ bad behaviour. In one case, a senior manager clearly hadn’t taken on board the key message from ‘How to Win Friends and Influence People’. He became heavily intoxicated, told the company director to “stick his f****** job up his a*se”, and then assaulted some of his co-workers. He must have been surprised when he learned that, not only had he missed out on that big promotion, but he had been dismissed for his antics. He brought a claim for unfair dismissal, which, unsurprisingly, was dismissed.

Employers could consider having designated managers to keep an eye out for any potential trouble-makers (e.g. people drinking too much). This can nip the problem in the bud and any employees that have had a bit too much can be sent home safely in a taxi before they do something they regret.

Beware the aftermath of the Christmas party

The dangers of gossiping about the office Christmas party (or ‘mistle-blowing’, as it should really be known) are illustrated in the case of Nixon v Ross Coates Solicitors [2008]. A female employee in a business development role was in a relationship with one of the firm’s solicitors. At the Christmas party, however, she was seen kissing the IT manager and at the end of the night they left together.

She became pregnant and the firm’s HR manager began speculating about the identity of the father. The employee felt that people in the office were gossiping about her and she resigned and brought a claim. An employment tribunal found that she had been constructively dismissed and, on appeal, it was also found that her treatment amounted to sex discrimination, pregnancy-related discrimination and harassment.

Anti-social media

Cases involving inappropriate use of social media sites have been on the rise for a number of years and it is surely only a matter of time before we see a case involving a comment, tweet or photo relating to the Christmas party. The Nixon case discussed above could easily have involved speculation about the father of the employee’s baby on Facebook rather than in the workplace.

Employers should have a social media policy in place and remind employees of its existence in the run-up to Christmas.

Having said all this we don’t advocate that office Christmas parties become bland, lifeless affairs. With the right communications beforehand and policy structure in place employers can reap the benefits of getting employees together for a jolly evening without adding ‘disciplinary hearings’ to the New Year ‘to do’ list.

Peter McCorkell is a senior solicitor in the employment team of Brodies LLP. For more information, contact Peter at peter.mccorkell@brodies.com

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