During the Christmas period, employers can face a minefield of HR challenges. Whilst we would hope that common sense would prevail and you should not have to remind your staff how to behave, unfortunately individuals can get complacent particularly when drinking.
1. What should you do to prepare for the festive season?
You should familiarise yourself with your policy on Christmas parties or work-related social events. You should also ensure that your Line Managers and Staff are aware of and familiar with your policy.
You should maintain a policy because you have a duty of care towards staff and as a matter of good practice. Furthermore, events that occur during the Christmas party will deem to be ‘in the course of employment.’ You can, therefore, be vicariously liable for your employee’s actions.
The Equality Act 2010 makes employers liable for acts of discrimination, harassment and victimisation carried out by their employee’s in the course of employment, unless you can show that you took reasonable steps to prevent such acts. To enable you to have an argument to defend a claim, take time now to ensure you have a policy or statement in place.
If you do not have a policy on Christmas parties or work-related social events, we recommend you implement one and you should issue a statement to employees in advance of the Christmas party or the work-related event. You may also wish to make a statement for Secret Santa so the naughty present this year does not give you any unwanted present next year!
This statement should remind staff of conduct matters, including the dangers of excessive alcohol consumption and behaviours that could imply bullying, discrimination or harassment and which can lead to disciplinary action.
2. Is an employer responsible for what happens at a Christmas party?
Yes. Whilst the office Christmas party is a chance for all to unwind and have an evening of fun before everyone gets carried away with the celebrations, remember that the Christmas party is a work activity and an extension of work time. Therefore, ‘in the course of employment’ includes events that occur during the Christmas party. Therefore, you will be vicariously liable for your employee’s actions and your employees must abide by your rules otherwise they could face disciplinary action.
If an employee suffers any inappropriate, unwanted or discriminatory behaviour at the Christmas party they should notify a manager immediately and/or follow the grievance procedure policy.
3. Can I discipline employees for misconduct after a Christmas party?
Yes, if the incident is sufficiently closely connected to work to have had an impact on the working situation.
4. Is it okay to offer a free bar at a Christmas party?
Whilst it is nice to have a little tipple to celebrate and everyone loves a freebie you need to remember that not everyone drinks. There is also the risk of people getting too merry. Whilst a free bar will undoubtedly be a morale booster, be aware of the dangers of providing an unlimited free bar.
There is the risk of those going overboard. You need to ensure that you encourage staff to drink and act responsibly. Make sure everyone is respectful to those who do not drink and ensure that everyone respects their colleagues.
Do not tolerate excessive drink, harassment, drink-fuelled rants or any inappropriate behaviour towards colleagues. Whilst we all love to blame the alcohol for our behaviour you need to ensure that staff drink responsibly and act respectfully. You could otherwise end up disciplining them for their conduct or you could end up facing a claim.
Also, be mindful that you may not be able to discipline or dismiss where you have provided an unlimited free bar. You do not want to end up in a position where you cannot dismiss an employee who has been drunken, abusive and violent towards another because you have encouraged such behaviour.
5. Do Christmas festivities discriminate against those of other religions?
It is unlikely that holding a Christmas party would in itself be religious discrimination because generally, these parties are about having a staff get-together and boosting morale than celebrating religion.
Please bear in mind however that not everyone celebrates this holiday. Make sure you and your staff respect individual’s beliefs and act responsibly. Be careful what you say and how you say it. Whilst you may not consider your comments to be discriminatory, a comment made to an individual may not take it that way so be mindful of what you say and do. No one should have to tolerate discrimination (whether intended or not) on the basis of religious belief. Any discriminatory comments made should be the subject of disciplinary action.
You should keep a policy on religious observance during the course of employment and be supportive towards employees whose religious festivals fall at different times of the year.
6. What if an employee comes to work late or not at all the day after the Christmas party?
Whilst we recognise that you may suffer from a slightly fuzzy head the next day, a hangover that prevents an employee from coming to work should not be acceptable. If an employee fails to attend work on the morning following the Christmas party without a genuine reason (sheer embarrassment is not an acceptable reason) then you should apply the normal disciplinary rules in relation to their unauthorised absence.
If you plan to take disciplinary action for lateness or non-attendance after the Christmas party, you should ensure that staff are aware that this is a possibility in the disciplinary policy or statement.
You may also be able to make deductions from an employee’s pay if they turn up for work late the morning after the Company Christmas party. As long as the right to make deductions from wages for unauthorised absence is clear in the Employment Contract.
Where an employee does not attend due to illness, you should follow your attendance management policy and procedures.
7. What if an employee posts inappropriate photos or makes an inappropriate comment about another colleague on Facebook?
Whilst party banter often continues after the party and everyone loves to share the evening’s events and photographs on emails, Facebook, Twitter, Whatsapp and other avenues of Social Media you should remind all staff to be mindful of inappropriate conversations and photos taking place through these channels. Remind staff to be mindful of what they post and how they post it on social media channels and that the company will not tolerate inappropriate behaviour via any platform. Any harassment, bullying or inappropriate behaviour via social media could result in disciplinary action. All staff should be respectful to their colleagues and act responsibly if posting, making comments or uploading photos from the night on their social media.
You should also have a policy on social media. Familiarise yourself with this policy and make sure staff are aware and familiar with it too. You have a duty of care towards staff and so having a policy is a matter of good practice. Comments and photos shared on social media can place the Company in a position of disrepute. You could end up vicariously liable for a comment an employee has made.
8. What if an employee gives a sexy secret Santa present to another colleague?
Most people love secret Santa. Whilst it is a great way to keep costs down and get everyone involved you must remember that not everyone will want to join in. Therefore you should give them the option to opt out if they wish. You should remind staff to be mindful of who they give a present to. Whilst they may think that the individual will find a particular gift a laugh and a joke, they may not. It does not matter how you meant the gift to be it is how the person who has received the gift perceives the gift.
You should remind staff to be aware that inappropriate gifts which cause offence could lead to disciplinary action. You should remind them to be mindful, respectful and act responsibly when purchasing and exchanging secret Santa presents. Whilst it may seem funny to send a sexual toy the person receiving the gift may not see the funny side. It could give rise to a claim against them and the Company. It could also lead to grievances or disciplinary action. Furthermore, bear in mind that if the recipient takes the gift badly you could end up having to defend yourself in front of a Judge. So remind staff to think about the gift they give today so that they do not have to face the embarrassment of explaining why they gave that sexual toy to a colleague tomorrow!
9. Can an employee insist on taking holidays during the festive period?
No. In the absence of an agreement to the contrary e.g. your policy on annual leave, workers must give notice equal to twice the length of the holiday that they wish to take.
You can then give counter notice requiring the employee not to take the leave. Ensure this counter-notice is equivalent to the length of the holiday requested, and the worker is not prevented from taking the leave entitlement in that holiday year.
Where an employee has accrued untaken leave and gives reasonable notice to you to take the leave, you must have a valid business reason for refusing the employee’s request to take leave.
Where the employee insists on taking leave and does so without approval, you should approach the issue sensibly. Be careful not to impose a disproportionate penalty on the employee.
10. Can you compel your employees to work bank holidays during the festive season and what if they refuse?
There is no statutory right to time off during bank holidays. There is also no statutory requirement to pay staff extra for bank holiday working. You should observe your contractual terms or custom and practice regarding pay rates and bank holidays.
If an employee refuses to work a bank holiday then you need to ascertain the reason for their refusal. Whilst employees do not have the explicit right to time off for religious observance, a refusal to grant a Christian employee time off for any of the bank holidays with religious significance could amount to indirect religious discrimination. The Equality Act 2010 protects workers against direct and indirect discrimination because of their religion. If you do not already have a policy on religious holidays you should consider introducing one.
How can we help?
Even if you have the best plans, policies and, procedures in place — issues can still arise. Some issues are easily solved, but complicated issues may need specialised support and advice. The earlier you get advice, the better your options will be.
We can offer ad-hoc support or consultancy but if you think you’ll need support of any kind more than once a year, Legal Shield packages are likely to be the most cost-effective option.
For further information contact our HR and Employment team who will be happy to help.