Halloween in the workplace: How to ghost the tricks and relish in the treats

Pumpkins, guising, costumes, jokes, dunking for apples, chocolate, alcohol… the list goes on…

It will come as no surprise to many that Halloween is one of the most popular and highly-anticipated dates in the UK social calendar year upon year. The ‘ghostly’ spirit promotes excessiveness over moderation, drama over decorum, and theatrics over everything.

With this in mind, it raises the following question – how does an employer embrace some freaky Halloween-inspired fun whilst banishing any potential monstrous misconduct?

Our Employment team have provided the following advice to keep you on the safe side of the line this Halloween:

1. Avoid discriminatory jokes and costumes in the workplace

It is not uncommon for employers to relax the workplace dress code for the day and allow employees to arrive at the office in fancy dress. Every year, however, a distasteful costume or an offensive joke hits the headlines and a discrimination or harassment claim finds its way to an Employment Tribunal.

Employees should be mindful of others when they choose their costume or share their jokes because something said or done in good humour could potentially cause offence and lead to sinister consequences. Justin Trudeau, the current Canadian prime minister, has recently caused widespread offence after pictures of him dressed as Aladdin in the early 2000s were uncovered. Mr Trudeau changed the colour of his skin to reflect the Disney character’s race for an Arabian themed night out whilst he was employed as a teacher.

Employers should ensure employees understand the boundaries when it comes to dressing up in the workplace, or sharing their favourite ‘trick-or-treat’ joke with colleagues. Examples of costumes and jokes to avoid this Halloween include anything that relates to a particular nationality or race, a person’s religion or belief, or a physical or mental disability.

Employers should ensure they communicate guidelines and expectations to all employees in a bid to combat misunderstandings or misconduct complaints, including reminding staff of the equality and diversity policy.

2. Paganism – a protected religion?

Religion is defined as ‘any religion’ under s10(1) of the Equality Act 2010. The definition is broad and encompasses a variety of religions including Scientology and Druidism. If a person can demonstrate that their religion has a clear structure and belief system then it may well meet the legal test.

In Holland v Angel Supermarket Ltd, a Wiccan witch succeeded in bringing a religion or belief discrimination claim after she was dismissed for changing her shifts to attend a Halloween ceremony.

Employers should be mindful of their obligations in the event that a worker’s religion or belief may be protected under the Equality Act 2010.

3. Social media misconduct

Pictures and videos from employees’ Halloween celebrations may be posted to personal social media accounts including Instagram, Facebook, Twitter and Snapchat.

It is important that employees are aware of the potential dangers associated with posting inappropriate or offensive content on personal social media accounts.

If a personal post attracts negative attention which has a resulting impact on the reputation or image of the employer, then this could lead to the employer initiating disciplinary action, and in extreme cases, possibly dismissing the employee on the grounds of gross misconduct.

In Crisp v Apple, an employee was dismissed after making sarcastic comments about an Apple product on a personal Facebook account, outside of working hours. The Employment Appeal Tribunal upheld the decision that this dismissal was fair based upon the reputational damage it could have caused Apple. Due to the nature of the internet, the EAT said that the claimant did not have a reasonable expectation of privacy even with a personal social media account.

Employers should review their social media, IT and communications policies, and remind staff of these policies. Policies should clearly set out what is acceptable and what is not, and the potential consequences if the policy is breached.

4. Halloween hangovers and absence management

As Halloween falls on a Thursday this year, employers should take steps to remind employees of their absence policy, as well as their disciplinary, and drug and alcohol policies.

Employees should be familiar with the contents of these policies to ensure their behaviour does not breach any of the terms contained therein, and land them in horror-ible trouble.

This article was co-written by Senior Solicitor, Jamie Meechan and Trainee Solicitor, Kirsty Fryer. For more information or advice please contact any member of our specialist Employment Law team.

Employment Law at MacRoberts

Our Employment Group is the longest established specialist team in Scotland, and our clients include some of the best known employers across Scotland and the wider UK.

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