How to stop Christmas party catastrophes

Legally, the office party is an extension of the workplace. 'Tis the season to be merry (just not too merry), says employment lawyer Frank Ryan.

by Frank Ryan
Last Updated: 20 Dec 2017

The festive season is well underway, which means the annual ritual of the office Christmas party is here. A staple of the workplace calendar, it has become something of a source of trepidation for employers nervous about the drunken antics of their staff.

Even when parties are held off-site and outside of working hours, the annual do is legally an extension of the office environment, with all the liability that entails. As with all work events, the company’s code of conduct applies; both overly-rowdy revellers and insufficiently responsible management can find themselves on the wrong end of legal action should things go awry.

What happens at the Christmas party, stays at the Christmas party

Employees should be made aware of the rules in place in advance of the event, and, as part of that, employers would do well to implement a clear social media policy. Employers need to be alive to the possibility of employees sharing material on a public forum that may bring their company into disrepute.

Photos of the tinsel-strewn office in disarray, or inebriated middle-managers doing their best David Brent may seem like harmless fun but could damage the reputation of the business. Factor it in early and minimise the risk of becoming a viral sensation for all the wrong reasons.

If you’re not careful you could be liable, fa la la la la la la la la

An over-zealous Instagrammer isn’t all you might be worried about. More serious offenses such as harassment or assault can often occur during the yuletide over-indulgence in firm-funded booze. If such misconduct does arise, you may be unsure as to the likelihood of your company shouldering the burden of responsibility.

Employment lawyers know vicarious liability to be a notoriously thorny issue. In Bellman v Northampton Recruitment Ltd, an employee who was seriously assaulted by a company director after the Christmas party argued that the company was vicariously liable for the latter’s actions and claimed damages.

This claim was dismissed after consideration of two key points — the nature of the offending employee’s job and whether there was a ‘sufficient connection’ between this position and the wrongful conduct. In regards to the latter, the judge found that as the assault occurred after the party itself, when a contingent of revellers decided to continue drinking back at their hotel, it was insufficiently connected to the Christmas party — and by extension to the offender’s working position.

With that in mind, managers should in theory be able to breathe a sigh of relief when their employees bid them goodnight. However, it must be stressed that the judge in Bellman acknowledged this test to be imprecise; each claim will be evaluated on its individual circumstances. It’s therefore advisable that employers err on the side of caution, for instance by booking taxis home for any worse-for-wear employees. It’s also wise to specify the party’s start and end time.

No one wants to be labelled a killjoy, but notifying a finishing time could increase the employer’s chance of being covered against anything happening after or away from the office party, provided of course that the party does actually wrap up at or about that time.

Do they know it’s the Christmas party?

Where misconduct occurs, the company’s usual grievance procedures apply. No matter how egregious the behaviour, resist the urge to discipline offending employees at the party itself, though do send them home or end the function early if necessary. Avoid employees claiming unfair dismissal by ensuring that your response to the incident is proportional to both its severity, and the expectations you set out before the party. This is where having communicated a clear policy on acceptable standards of behaviour really comes in handy.

In one employment law case, three employees caught brawling after seven hours of drinking at a free bar successfully argued that their resulting dismissals were unfair — it was an open bar bankrolled by their employer. The Fair Work Commission held that it is ‘contradictory and self-defeating for an employer to require compliance with its usual standards of behaviour at a function but at the same time to allow the unlimited service of free alcohol’, with it being ‘entirely predictable’ that excessive consumption and inappropriate behaviour may ensue.

Equally, failing to take an incident seriously enough can land an employer in hot water. Excessive alcohol consumption is no excuse for discrimination, harassment or assault, and it goes without saying that an employee who issues a complaint over a colleague’s behaviour must be taken seriously, regardless of whether or not the incident occurred when they were on the clock.

And so this is the Christmas party – and what have you done?

A word of warning: don’t lose sight of your own conduct while keeping your employees in check. Fuelled by Christmas spirit and perhaps one too many festive libations, it is not unheard of for managers to make promises that, in the cold light of day, they simply cannot keep. Save conversations regarding performance and promotions for a more appropriate setting, or risk facing a claim for constructive dismissal.

While all of this might be enough to make employers go ‘bah humbug’ and can the idea of a Christmas party altogether, they can be reassured that many of the perils outlined above can be avoided through careful planning and a hearty helping of common sense.

Frank Ryan is head of employment at law firm Vardags.

Image credit: Home Art/Shutterstock

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