'Twas the morning after the night before... how to avoid the legal hangover of your office Christmas festivities

With the festive season underway and office parties planned, we want to help you avoid the legal hangover for many red-faced employees following Christmas festivities with their employer.

You may feel that managers and HR staff are scrutinising your conduct at every opportunity, and you may even call them a “bah-humbug” whilst asking yourself, “are people really guilty of misconduct in these circumstances or are they just having a good time?”. Well the answer is yes, ‘fun’ to some can be misconduct! Employees often assume that office rules do not apply at social events outwith working hours and whilst this, in part, may be true, Christmas parties can result in HR nightmares. So where is the line drawn between “fun” and “misconduct”?

Although Christmas parties are often held away from the work premises, the Employment Appeal Tribunal (EAT) has considered whether the location has an influence on whether it is an extension of the workplace. It has been held by the EAT in The Chief Constable of Lincolnshire –v- Stubbs [1999] ICR 547 that “attending a public house for relaxation immediately after the end of the working day…is…merely an extension of employment…”. This is not always the case, however, there is a legal test to be satisfied. In the case of Livesey –v- Parker Merchanting Ltd EAT 0755/03, the EAT held that acts of harassment carried out by a male employee on a female colleague at a hotel during a firm’s Christmas party were carried out in the course of employment. However, similar acts which took place on the car journey home did not constitute actions in the course of employment. The tribunal has to decide whether the actions of the employee are “so closely connected with the employment that it would be fair and just to hold the employers vicariously liable” (Lister –v- Hesley Hall Ltd [2001] UKHL 22).

So, how does this relate to you this Christmas time?

Conduct

The responsibility for conduct does not lie solely with the employee. Whilst it might seem obvious, it is important to ensure that employees are aware of the code of conduct and that disorderly or aggressive behaviour, harassment, drug taking or calling in sick the following day would be unacceptable and may result in disciplinary action, or more seriously dismissal.

Being dismissed as a result of failing to attend work following the Christmas party was the issue in the case of W Brooks & Son –v- Skinner [1984] IRLR 379. Mr Skinner was dismissed for failing to turn up for his nightshift following the work Christmas party. Although Mr Skinner’s dismissal was held to be unfair, this was solely due to the fact that the result of failing to attend work the day following the Christmas party was not communicated to the employee in writing. Had it been properly communicated, his dismissal would have been held to be fair.

Fighting

The vicarious liability of employers for the violent acts/behaviour of their employees at festive parties was examined in the case Bellman –v- Northampton Recruitment Ltd [2016] EWHC 3104. The Claimant and his colleagues went on to impromptu drinks after the official Christmas party ended and, when discussion turned to work-related matters, the conversation became heated. Mr Major lost his temper and made clear to employees that he owned the company and made the decisions. Mr Bellman challenged him in a non-aggressive manner and Mr Major responded by punching the Claimant, resulting in substantial brain damage and a potential lifelong inability to work. It was held by the High Court that the Respondent, the company of which Mr Major was Managing Director, was not vicariously liable for the actions of Mr Major. The basis of this decision was that despite the altercation occurring as result of a work-related conversation, this conversation ensued at post-party drinks and as such the altercation did not occur in the course of employment. Had this altercation taken place during the Christmas party, the company may well have been found vicariously liable.

When the night has come to an end and you are heading home with colleagues it is important to recognise that your conduct may still have consequences. In Gimson –v- Display by Design Ltd ET/1900336/2012 the claimant punched a colleague on the walk home from a Christmas party. Mr Gimson was subsequently dismissed for gross misconduct and claimed this was unfair. His claim was dismissed as the EAT held that the action was sufficiently connected to work and had he not attended the Christmas party, he would not have been walking home with a colleague and the incident would not have occurred.

Romances and unwanted advances

It is a well-known fact that romances can blossom at office Christmas parties. Employers should make clear to employees the company policy on office relationships. As well as potentially being against company policy, any sexual relations may also have a negative impact on the work environment as well as influence your desire to return to the office… you don’t want to be the topic of coffee break conversation.

In the case of Nixon –v- Ross Coates Solicitors [2010] Eq.LR 284 (EAT), Ms Nixon found herself to be the topic of conversation in the office after kissing and sharing a room with the IT manager following the works Christmas party. Nixon was pregnant at the time of the encounter, however, when colleagues became aware of the pregnancy they began to discuss the paternity of Ms Nixon’s unborn child. Being the subject of such conversations was distressing for Ms Nixon and she raised a grievance and requested a move to an alternative office location. This request was refused and as a result she resigned and claimed constructive dismissal and discrimination on the grounds of gender and pregnancy. Ms Nixon’s claim for sex discrimination was upheld. The tribunal was of the view that the Company had failed to deal with Ms Nixon’s grievance and refusing to move her had forced her into an environment that the tribunal held to be unfavourable for her. In terms of remedy, the tribunal held that the conduct of Ms Nixon at the Christmas party would have resulted in a reduction in the basic award had she been disciplined and claimed unfair dismissal immediately after the party. However, the tribunal felt there could be a relationship between the conduct of Ms Nixon at the party and the resulting constructive dismissal claim. This meant that there was causation between the conduct of Ms Nixon and her subsequent unemployment and as such the remedy was reduced to reflect this. In other words, the remedy awarded to Ms Nixon was reduced by a percentage as she had contributed to the outcome of events.

Secret Santa

Everyone is aware of the concept of gift giving by way of “Secret Santa”. You buy a gift, usually with a low price tag, and present it anonymously. A simple and fun way of spreading Christmas cheer… or is it?

It is important to remember that others might not find things as entertaining as you may. What may seem as a comical gift to you may result in the receiver of gift being offended. It is important to refrain from buying insensitive, inappropriate or embarrassing gifts.

Choose your words wisely

As with gifts, words must also be chosen wisely. We are all aware of people who have engaged in conversations on matters they would not as openly have discussed if not for the consumption of alcohol. For this reason it is vitally important to ensure you do not make promises which may be contractually binding; for example promising to increase someone’s salary. This is evident in the case of Judge –v- Crown Leisure Ltd [2005] IRLR 823. Mr Judge, an employee of Crown Leisure Ltd, was promised by a director of the company, whilst at their Christmas party, that they were intending to increase his salary in due course to align with a new employee who was on a substantially higher salary than that of Mr Judge at that time. Mr Judge’s salary was not increased within two years and he therefore resigned, claiming constructive dismissal. His claim was dismissed by the Tribunal as it was found that the director was providing mere “words of comfort” and the wording was too vague to amount to contractual intention. However, employers should remember that any conversations between themselves and employees may well result in a contractual obligation without the intention to do so.

It is also important to be mindful of word choice whilst enjoying festivities. Interpretation of word choice was examined in the case Davies –v- Abergavenny Mind Association ET Case No.1606142/08 which involved the term “frigging fairy”. The Claimant, who was gay, was given festive headgear in preparation for the Christmas party by a colleague. Whilst wearing the festive headgear which consisted of two furry flashing stars on springs, his colleagues laughed whilst another colleague, with whom he had a troubled relationship, commented that he looked like “a frigging fairy”. The Claimant immediately construed this as a homophobic remark which amounted to harassment. The colleague in question maintained that she was referring to a Christmas fairy and had not intended to offend. The tribunal accepted this on this occasion, however.

Taking all this into consideration, there is an obligation on both employees and employers to ensure all those who attend any events over the festive period behave in a manner which compliments the organisation but, more importantly, to ensure that fun is had by all those in attendance. After all, ’tis the season to be jolly!

We wish you all a very merry Christmas!

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