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How to avoid Christmas party tears and legal actions

By Niall McMullan

As the festive season approaches and the finishing touches are made to the planned festivities, you may be concerned about whether the dress code should be ‘Christmas jumper’ or what time the bar closes.

However, the aftermath of the office Christmas party can raise employment issues, leading some employers to cancel the annual party altogether. Below are some interesting legal cases that provide helpful hints on how not to act during the festive period from both an employer’s and employee’s perspective:

1.Social events connected with work can be an extension of the workplace.

The Chief Constable of the Police in Lincolnshire was held vicariously liable for the actions of an employee, a male officer, who sexually harassed a female colleague whilst at the pub. The Employment Appeal Tribunal in The Chief Constable of Lincolnshire v Stubbs [1999] ICR 547 upheld the original Employment Tribunal’s views that “attending a public house for relaxation immediately after the end of the working day is, in our view, merely an extension of employment...”

Lesson: Behave at the Christmas party as you would at work — similarly employers should ensure employees understand the code of behaviour they are expected to adhere to. (Providing a free bar may not result in work appropriate behaviour!)

2. Never mind the Christmas party, walking home from it is still an extension of the workplace.

In Gimson v Display by Design Ltd ET/1900336/2012, Mr Gimson punched a colleague in the face while walking home from the party. This was investigated by the respondent, and Mr Gimson was subsequently dismissed for gross misconduct. His claim for unfair dismissal was dismissed by the employment tribunal, who found the incident was sufficiently closely related to work, as he would not have been walking home with his colleague save for the party.

Lesson: Alcohol is no excuse for misbehaviour even at the end of the night. Employers may want to consider providing transport home for employees.

3. ‘Mates having a laugh’ can warrant dismissal.

In Bhara v Ikea Ltd ET/1311146/10, Mr Bhara while out for a smoke break at his office party warned his colleague not to drink too much as he was working the next day. His colleague did not take too kindly to this reminder, and a ‘scuffle’ ensued. Following an investigation in which both parties played down the event Mr Bhara was dismissed. The employment tribunal held that while the Respondent was not obliged to dismiss Mr Bhara, fighting with a colleague is “a matter of the utmost seriousness” even if there were “no lasting hard feelings”.

Lesson: While out at the office Christmas Party you are representing your employer, and therefore any errant behaviour may bring the company name into disrepute, even if it is play-fighting with your mates.

4. Be careful of promises made.

In Judge v Crown Leisure Ltd [2005] IRLR 823 (CA), Mr Judge was promised by a director of the respondent at their work Christmas party that they intended to align his salary in due course with that of a new employee who was on considerably more. When Mr Judge did not achieve parity within two years he resigned and claimed constructive dismissal. His claim was dismissed as it was found the director was merely providing “words of comfort” and were too vague to amount to a contractual intention. However it is clear from the judgment of the court that employers must be mindful of such conversations, as these could be contractually binding.

Lesson: Do not make promises about pay rises or promotions at the Christmas party. The employer here was not held to it, but another tribunal may not be so sympathetic and such ‘promises’ can be fact-sensitive.

5. Christmas party aftermath.

Following what the employment tribunal categorised as ‘contributory conduct’ with a male colleague at the office Christmas party in Nixon v Ross Coates Solicitors [2010] Eq.LR 284 (EAT), Ms Nixon fell pregnant, and rumours about her pregnancy, and the possible paternity of her child, abounded, allegedly spread by the HR manager. Following a refused request to move office, and failure to investigate her grievance, she resigned claiming constructive dismissal, and discrimination on the grounds of her gender/pregnancy. Her claim for sex discrimination was upheld on appeal.

Lesson: Aside from behave appropriately at the Christmas party, beware of the inevitable gossip which ensues. Whilst you may think it harmless gossip, the subject of it may not.

Niall McMullan is an Associate Partner in the Employment Law department of Worthingtons solicitors and can be contacted on 028 9043 4015

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