It’s the most wonderful time of the year! Christmas party season is upon us and many of us will don the paper hats and celebrate another cracking (sorry) year with our colleagues.
We are regularly asked for advice on about employer liability at Christmas parties in the run up to the holidays. We are also occasionally approached in early January when things haven’t quite gone as planned.
Chris Dobbs, the newest member of our specialist employment team, answers some of the most common queries about Christmas parties.
Employer Liability for incidents at Christmas party
Employers have a legal duty to make sure employees are safe at work and this extends to work events. If an employer plans an event away from the usual place of work, they are legally responsible for ensuring the event is safe and for minimising risks of hazards and dangers.
Are Employers liable for incidents at Christmas Parties?
If an employee is injured at the venue and they were not to blame for the injury, there is a potential claim against the employer for compensation. Staff should be aware of the expected standards of behaviour to help avoid claims for:
- Harm arising from the negligent conduct of other employees
- General harm under health and safety legislation
- Discriminatory acts committed by the employer or their employees.
This is all because social events organised by an employer are an ‘extension’ of the workplace even if they fall outside normal location and hours.
Is a Christmas party classed as being at work?
Yes, an official and organised Christmas party is an extension of the workplace and all the usual rules apply. Punching the accounts manager might be tempting but it is no more acceptable at the Christmas party than it would be in the office on Monday morning.
If the employee leaves the party, goes to a new location and is injured there, the employer surely could not be held liable, could they?
Yes, said the Court of Appeal in Bellman v Northampton Recruitment Ltd in 2018. Mr Bellman was a Sales Manager who attended the company’s Christmas party. At the end of the evening, the Managing Director arranged taxis to a hotel where the party continued, largely funded by the company.
Vicarious Liability at a Work Christmas After-Party
An argument broke out leading to a physical altercation between Mr Bellman and the MD which led to the MD punching Mr Bellman leaving him with serious brain damage. The High Court originally ruled that this was a separate event and a dispute between two people for which the Company could not be vicariously liable.
The Court of Appeal disagreed. The MD was a senior employee who had full control of his staff and the Company. The argument which broke out was work related and he was wearing his MD hat, exercising the authority which the role gave him. The party was a follow-on from the work event, not an isolated social activity which happened to involve colleagues and the Court of Appeal concluded that there was a connection between the conduct and the MD’s professional role. The Company was therefore vicariously liable for the injury.
Advice for employers about Christmas Parties
Chris Dobbs, Employment Solicitor, says “Always distance yourself from unofficial after-parties and make it clear that if colleagues decide to move on to other venues or continue after the official event ends, this is not endorsed by you as an employer.”
Can you dismiss for behaviour at a Christmas party?
If a Company can be held liable for injuries and actions of its employees at a Christmas party then it is only right that it can also dismiss for behaviour.
Of course, an employer can dismiss an employee for behaviour at a Christmas party. The employer must just be careful to treat the process exactly the same as they would if the behaviour had been committed during work hours.
Can you get sacked for behaviour at a Christmas party?
Criminal behaviour often leads to dismissal especially if there is a conviction. However, ACAS state that “an employee charged with, or convicted of, a criminal offence […] is not normally in itself reason for disciplinary action”.
It is important for the employer to consider what effect the criminal charge or conviction could have on the employee’s suitability and ability to do their job. This means looking at whether the conduct is even relevant to their work, the impact on the employer’s reputation and whether there is a breakdown in the relationship between the employee and their colleagues.
Even if your contract and policies do not allow for a conviction to be deemed gross misconduct, the contract is probably 'frustrated' by the fact the employee cannot perform work.
Remember that it might be difficult or even impossible to conduct a fair investigation process during a criminal prosecution. The police should not provide you with any of their evidence but as an employer you must make a reasonable assessment of guilt in order to establish whether dismissal could be fair.
Examples of dismissals for behaviour at a Christmas party
Gross Misconduct after the party has ended
Fair dismissal in the case of Gimson v Display by Design where Mr Gimson punched a colleague who was trying to diffuse a situation between him and another employee.
Gross Misconduct for fighting at Christmas party
Fair dismissal in the case of Bhara v Ikea Ltd where a “tussle” which was described as “mates having a laugh” was considered sufficient to justify a dismissal.
Gross misconduct where the behaviour of two employees is of equal seriousness but only one was dismissed.
Unfair dismissal in Westlake v ZSL London Zoo. The employees should have received the same sanction so Ms Westlake was unfairly dismissed but her reward was reduced to zero.
Can you be fired for taking drugs outside of work?
A special mention on the topic of taking drugs outside of work.
In Kuehne & Nagel Ltd v Cosgrove, the Employment Tribunal found that it was unfair to dismiss an employee for taking cannabis outside of work. The claimant had admitted to this after he failed a drug test but claimed never to have been under the influence at work.
The company appealed to the Employment Appeal Tribunal and it was determined that the dismissal was fair because the employer had actual belief in misconduct, had reasonable grounds for that belief and carried out a reasonable process. The employer had considered all it needed to do so in order to reach a fair dismissal decision.
Can you get fired for being drunk at a work Christmas party?
In 2015 an Australian Fair Work Commission (equivalent of an Employment Tribunal) found that an employee accused of sexual harassment and telling a company manager ‘where to go’ at a Christmas party while drunk was unfairly dismissed.
The Commission was reported as saying “If alcohol is supplied in such a manner, it becomes entirely predictable that some individuals will consume an excessive amount and behave inappropriately.”
While no UK court has gone as far as to say that bad behaviour should be expected if a company provides people alcohol, it is fair to say that being drunk is unlikely to lead to a dismissal by itself. The vast majority of cases are behaviour in which alcohol has likely played a role in an employee’s poor decision-making. UK case law places emphasis on the employee’s obligation to maintain high conduct standards whether in the workplace or not while at work events.
The UK courts consider the reasonableness of the decision to dismiss in the circumstances of the case. This make the Australian outcome very unlikely under UK law as they looks for a “harsh or unjust” decision not whether the employer acted reasonably.
Learning Tip for Employers
The fact that you supplied alcohol is unlikely to lead to a successful claim for unfair dismissal if you follow your processes and the conduct of the employee is serious enough to justify dismissal. That said, just being drunk at a Christmas party is probably not a good reason to dismiss someone.
Chris Dobbs, Employment Solicitor says “Misconduct is misconduct. The key issue as to whether it is any of the company’s business is whether “in some respect or other it affects the employee, or could be thought to affect the employee, when he is doing his work”. This is quite a broad statement and as we can see above, the potentially fair reasons for a misconduct dismissal outside of the workplace are far-reaching.”
The Dos and Don’ts of an office Christmas party
Employers and HR Managers will want to balance the need for their staff to be able to relax at a Christmas event without feeling at risk of a nightmare in January.
To help mitigate the risk of matters getting out of hand:
- Make a clear distinction between social events which are official (and at risk of vicarious liability) and the unofficial ones (which are less likely to be a risk)
- Provide clear guidance on the expected standards at office parties and what behaviour is unacceptable
- Arrange for a member of management (or two of three!) to be in charge of monitoring staff and their alcohol intake.
- Risk assess. Risk assess. Risk asses. The more you have done to mitigate accidents and incidents, the stronger your case will be if there is an issue in the future.
- Make sure staff are aware of the complaints process. Take complaints seriously and investigate them properly.
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and someone from the Employment Team will be happy to discuss it with you.
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