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The Office Christmas Party: Top Tips for Employers

Posted in : Webinar Recordings on 23 November 2018
Bláthnaid Evans
Leman Solicitors

‘Tis the season to be jolly and the office Christmas party is fast approaching! For many employees, this is the highlight of the year - a reward for working hard, a chance to unwind and enjoy in the festive fun with colleagues. However, Christmas parties often raise legal challenges for employers and very often bring threat of legal proceedings.

Bláthnaid Evans, Head of Employment at Leman Solicitors, outlines the potential risks of Christmas parties, including sexual harassment, alcohol-fuelled brawls, discrimination and post-party absenteeism. Bláthnaid explains the legal risks involved, what employers can do to prevent and deal with allegations of sexual harassment following the Christmas party, and what strategies can be employed to mitigate the prospect of claims arising.

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Transcript

Claire: Hello. Good morning, everyone, and welcome to our webinar this morning. My name is Claire Marley from Learning and Development at Legal-Island. This morning I'm joined by Bláthnaid Evans, Head of Employment at Leman Solicitors here in Dublin. Good morning, Bláthnaid.

Bláthnaid: Morning, everyone.

Claire: Thank you very much for taking the time out of your busy day to talk to us today about Christmas parties. I know the Christmas party season is fast approaching and a lot of employers will be thinking about how to avoid common pitfalls, and we're here just to get some advice and tips around avoiding legal challenges around that.

This morning, everyone, we're going to be running from 11:00 until 11:30. Please do feel free to send in your questions via the chat box on the right-hand side and we'll do our best to answer those, time permitting. We'll also be sending out a Q&A article, and Bláthnaid will kindly answer any of the questions that we don't get through this morning.

What are the legal risks of Christmas parties and what strategies can employers employ to mitigate the prospect of claims arising?

So Bláthnaid, we'll just launch into the questions here. The first one, "What are the legal risks of Christmas parties and what strategies can employers employ to mitigate the prospect of claims arising?"

Bláthnaid: I think the first thing to remember here is that the Christmas party is effectively an extension of the workplace. Your first step is your duty of care to the employees when hosting a Christmas party, and indeed any other work social event. The key really is planning...

For example, ensuring that they have up-to-date policies in place to deal with any disputes that might arise — this might include dignity and worth policies, bullying, harassment, even social media policies — ensuring that they're kept up to date, and regular training on the policies, depending on the workplace and depending on the relationship of managers.

One way to make employees aware of these policies and what could go wrong and how that could be managed, you might circulate the policies in advance. You might decide, and a more obvious and discrete way of alerting to it is — or ensuring that the annual training might be done in September or October rather than the day before the Christmas party. And other things in terms of just when the Christmas party is running, like employers, avoid making empty promises at the parties, telling employees, "Oh, you're going to get a pay rise," or something like that.

Claire: Yeah, or any conversations about their career prospects and things like that…

Bláthnaid: Exactly, exactly. Then an employee might turn around and say, "Oh, you promised me this yesterday."

Claire: It's not a good idea.

Bláthnaid: Other things are like, even the Secret Santa or the Kris Kindle, keep it tasteful.

Claire: Nothing offensive.

Bláthnaid: Yeah. Or another one is the weekday party. Some employers would say, "Oh, we'll have it on a weekday," to think that that'll avoid employees drinking as much. It does with some people, it doesn't with others. So you've just got to remember that all the policies do apply the next day.

Claire: Yeah. And also, I suppose, in that respect, if you're holding it on a workday, it's important to be clear with your employees about absenteeism the next day, just in terms of leniency and whether you're going to allow them to come in, say, at lunchtime, just so people are all on the same page in terms of that.

Bláthnaid: Yeah, exactly. It's the same as drink driving. Depending on what the intake the night before, you can't necessarily drive the next morning. So while it can be a good idea, employers just need to be wary of it. Employees need to be aware that they can't come into work under the influence.

Claire: Absolutely, yeah. And I suppose that goes to the party itself. Like if you're going to offer alcohol, like we spoke about before, just to make sure there's plenty of food available and to ensure that the high standards that you expect are maintained at the party itself.

Bláthnaid: Yeah. Maybe avoid the free bar.

Claire: Yes, good idea. Okay, that's super. Obviously, things can take a turn for the worst and employers can be exposed to certain claims such as sexual harassment complaints, bullying complaints, and compensation claims. Claims can not only affect employee morale and the employer's reputation, but they also can be time-consuming and costly. What are the financial and reputational risks of a successful harassment claim? What sort of compensation could be awarded if you're successful?

What are the financial and reputational risks of a successful harassment claim? What sort of compensation could be awarded if you're successful?

Bláthnaid: In terms of the financial risks, a harassment complaint under the Employment Equality Acts, if an employee is successful in bringing in a claim, they could be awarded up to two years' gross remuneration. That's not based on actual law, so it will be a lot to do with the employer's behaviour and the procedure, etc., that was followed.

It should also be noted that aside from a harassment complaint in the WRC, an employee might be able to bring in a personal-injuries claim in the circuit in the High Court, and that could be both more costly in terms of the damages that could be awarded, but also in terms of the legal costs, which can be considerably more. If an employer is unsuccessful in that, they could also be hit with the cost awards of the other side, depending what happens. So potentially, it can be quite expensive, depending on what route the employee decides down.

In terms of the reputational risks, no employer wants to be in the papers to say that an employee has been harassed. Whether it did or did not happen, it's still out there, it's still in the media. In the WRC, if it isn't an equality case, the names can be cited, so it's not the usual rules that do apply. And in summary, if it's a High Court or Circuit Court claim, you're more likely to get journalists there as well who will regularly report on those sorts of cases. They're interesting stories and people like to hear about them.

What can employers do to prevent allegations of sexual harassment arising?

Claire: What can employers do to prevent allegations of sexual harassment arising?

Bláthnaid: Again, it comes down to good policies and procedures in place and regular training. It must be remembered that the Code of Practice, and indeed, there's a case on this as well which does recognise that the workplace goes beyond, or the Christmas party is an extension of the workplace. So, regular training, good policies, making employees aware . . .

The definition of sexual harassment, under the legislation, is very wide. Just to quote it here, it's "any form of unwanted verbal, nonverbal, or physical contact of a sexual nature, being conduct which . . . has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating, or offensive environment for the person."

So it's very, very broad and employees must be aware that it's not subjective. So just because you may not find personally that the conduct unwanted or harassment doesn't mean that your colleague won't think that.

So I think it's all about making employees aware of how broad it is and exactly what that definition is so that they're mindful of it. You wouldn't get on like that in the workplace when you're sitting at your computer. So you've got to apply that thought process when you're on a night out, be it the Christmas party or otherwise.

Claire: Sure. Yeah. It goes to the definition, doesn't it? I mean, one employee's crude joke or banter could be another's clear-cut sexual harassment claim.

Bláthnaid: Exactly. Yeah. Yeah.

Claire: And it's not really like bullying, either. That has to be repeated. It can be a one-time offense, can’t it?

Bláthnaid: Yeah, yeah, exactly, yeah. And that's where often these do happen, especially sexual harassment. It's at the Christmas party or some sort of office event and somebody says something inappropriate or . . .

Claire: Offensive.

Bláthnaid: Yeah.

What should employers do if an issue arises at the actual Christmas party or, say, for instance, an allegation is made after the party?

Claire: Sure. Okay. What should employers do if an issue arises at the actual Christmas party, say, for instance, an allegation is made after the party?

Bláthnaid: What I would always advise clients to do, firstly, speak to the person who's made the complaint. Sit them down. Have an informal chat with them. Find out what happened, what they want to happen. In doing that, you will explain the relevant procedure that's there, saying that presumably it can be done informally, or indeed, if they want to go formal, what that will look like in terms of the investigation itself.

If the person is willing to deal with it on an informal basis, that could just involve having a meeting between the other person — or people, if there's more than one — in a room with HR presence and talking it through and a simple apology. And again, if it is an informal thing, I would just make a note of that on the file to show that it has been dealt with and all the parties are happy enough.

Claire: Keep records…

Bláthnaid: Exactly, yeah, so that if something does arise in the future . . . nobody has a brilliant memory, so you can remember what has happened. But what I would say is act promptly on it. Don't let it sort of dwell over Christmas so that an employee is sitting at home, thinking about it. Deal with it the next day. More often than not, people just want this to go away and just have it dealt with on an informal basis.

Claire: And say, for instance, that it wasn't a harassment issue at the party. Say it was a, I don't know, some sort of fight breaks out... It's better to send the person or persons involved home and then deal with it when you get back to the office, via your policies and procedures and go down that route…

Bláthnaid: Exactly. Yeah, yeah. There's going to be no sense there trying to deal with it at the party.

Claire: And follow your normal disciplinary and grievance procedure back in the office then.

Bláthnaid: Yeah, exactly.

In terms of an employer’s duty of care, do you have any tips for employers in how to meet that and mitigate any risks that arise?

Claire: Sure. Okay. Super. And so an employer must take reasonable steps to avoid incidents such as bullying and harassment from occurring at the party. So in terms of their duty of care, do you have any tips for employers in how to meet that and mitigate any risks that arise?

Bláthnaid: Yeah. It goes back to the policies and the procedures, making sure that they're up to date and there's regular training on it. Aside from that, just in terms of practical tips, probably on running the party…I would have a word with management. Sometimes it's easier for management to discreetly say to their staff, remind them it is an extension of the workplace. These are your colleagues. Don't treat them any differently. It's not a normal night out with your friends.

But even the running of the party itself, I wouldn't necessarily operate a free bar, drink coupons or sort of limit that. Arrange for transport home. If they are away, accommodation. Just trying to think if there is anything else. I think that's really the main thing. We touched on a lot of already.

Would you advise sending out emails to employees in advance with written guidance stipulating certain standards of behaviour are expected of them?

Claire: And would you advise sending out emails to employees in advance with written guidance to say, "Oh, well, look, this is an extension of the workplace, standards of behaviour are expected of you? Would that be a good idea?

Bláthnaid: Yeah. Sometimes, yeah. Again, it sort of depends on the workplace and the way it operates and the relationship that they have with their employees. Sometimes you might even, when you're announcing the date of the Christmas party, I've heard employers having a link to the policies on their internet page, just to remind everybody that this is a...

Claire: Be aware of them…

Bláthnaid: Yeah. You can do it in a softly soft way without sort of being in too much an employee's face. But you want the employees to go to the Christmas...

Claire: Yeah, you want them to enjoy it.

Bláthnaid: Yeah, nobody wants to be negative…

Claire: Okay, great. And, yeah, as you said, just recirculating policies, it's a good idea just in advance so people are aware.

Bláthnaid: Yeah, exactly.

What about after-parties? Say the party itself ends and employees carry on to, say, for instance, another bar or a nightclub, is this an extension of the workplace?

Claire: Great, great. What about after-parties? Say the party itself ends and employees carry on to, say, for instance, another bar or a nightclub, is this an extension of the workplace?

Bláthnaid: Yeah, it can be, in short. It sort of depends on the circumstances. But generally speaking, the test is "but for." So but for them being in work, would they have gone to this event? More likely than not, the after-party will be linked to the work event and could be seen as an extension. There will be exceptions to that and there will be ways around it. For example, if one or two people went off to meet their own group of friends, it would be hard to see how that would be seen as a work event.

But I think a good example of this is the Bellman v Northampton Recruitment case, the . . .

Claire: Absolutely, yeah.

Bláthnaid: . . . yeah, the English case. That involved a small enough business. Had a very cordial Christmas party in the golf club. The managing director organised taxis to a nearby hotel for a bit of an after-party. Continued to be very cordial. Wasn't much work chat. And then it turned into work chat with a few people, including one of the field managers, who the managing director was very friendly with, started to make issue with a new hire, saying that he'd been paid too much money.

The managing director in this one got quite annoyed at these comments and ultimately lost his temper and hit the sales manager repeatedly. Unfortunately, he ended up with brain damage. It's quite a sad story.

Bláthnaid: But that went to High Court. Surprisingly, in the High Court, they found that Bellman wasn't actually vicariously liable for the actions of the managing director. But then it got appealed to the Court of Appeal recently, and they overturned that decision and they found that . . . reluctantly, actually, they found that they were liable for his actions.

But they did say in their decisions that this shouldn't be seen as the standard rule. It will depend on the particular facts of the case. But they looked at the fact that he was the managing director of the company. They looked at his duties and how he came out and he basically pushed his authority on the people by saying that . . .

Claire: Yeah. I think that’s what the Court quoted that he was asserting his authority...

Bláthnaid: Exactly.

Claire: in line with his position as managing director…

Bláthnaid: Yeah, yeah. And had he not gone and sort of made those comments, it's questionable whether or not they would have found him vicariously liable. So it's a bit of . . .

Claire: Fact specific…

Bláthnaid: . . . yeah, a bit of a grey area. But there certainly is a risk when there is an after-party, that it could be definitely deemed as part of the original work event.

What if a sexual harassment allegation arises outside the workplace but amongst colleagues?

Claire: Okay, great. And so say, for instance, say a sexual harassment allegation arises, the lines between work life and private life are becoming increasingly blurred these days. What if a sexual harassment allegation arises outside the workplace but amongst colleagues? So it's outside of the office, but say it's a colleague that's accusing another colleague, but the incident itself has taken place off the premises.

Bláthnaid: Assuming that it's in some way linked to the workplace, that could still mean that the employer would be liable for it, be it vicariously liable or . . . it might be more difficult to say that they were vicariously liable, but they could come within the remit of harassment or sexual harassment under the Employment Equality legislation because that is wider. It's not that it has to happen in the course of employment. It just has to be linked.

Claire: And employers have to take measures to sort of prevent these things from happening.

Bláthnaid: Yeah.

Claire: So it could be

Bláthnaid: Exactly, yeah. So that's why it's back to . . . at the end of the day nobody should be harassed, whether it's linked to their workplace or otherwise. Depending on the seriousness of it, it could also be deemed as a criminal offence.

Can an employer be liable for online harassment of employees?

Claire: Yeah, sure. Okay. And we'll move on to social media policies and online harassment. Can an employer be liable for online harassment of employees?

Bláthnaid: Potentially, yeah. Again, it depends on the facts of it and the particular circumstances. There's the Dublin Bus case, McCamley v Dublin Bus. In that case, the employee made a complaint to say that he'd been harassed by another work colleague on Facebook.

Originally, when the organization looked at it, they didn't think that it did come within the workplace. But he appealed it to the senior HR in the company and they agreed that it was, because it was that it may not have physically have been in the workplace when it happened. It was a work colleague that said it to him. And it just shows you how dangerous and how wide the world of social media is.

Claire: Yeah. There are a lot of risks there.

Bláthnaid: Yeah, yeah. And again, it's key to employers making employees aware of the social media policy and how wide the remit of that is. Harassment extends to all forms of social media. More often than not, people are communicating more on social media than they are face-to-face and in the conventional conversation.

Claire: Sure, sure. And that goes back to Christmas parties as well, social media. Say, for instance, people posting pictures or checking into locations, it's quite a risky thing to do as well in terms of reputational damage, say, if they're inappropriate or offensive pictures.

Bláthnaid: Exactly, yeah. I would always say to clients, "Let staff know that they shouldn't be putting pictures up on Facebook or anything like that because there's too much risk." When you're not . . .

Claire: On a data protection point as well if certain people haven't consented to say their pictures going up or something like that.

Bláthnaid: Yeah, yeah, yeah.

Claire: Very good. And so, yeah, I suppose it's important for employers to review their social media policies and to ensure that it sets the consequences of sharing content online from the Christmas party that could cause reputational damage or infringe a colleague's right to privacy.

What obligations exist for employers where no formal complaint of sexual harassment has been raised internally in respect of suspected sexual harassment?

Bláthnaid: So if a formal complaint hasn't been made but they have suspicions of it, and usually this comes about by not the victim itself but perhaps their colleague might sort of approach them. You'd speak to whoever obviously has come forward with the information and then you might approach the particular victim on an informal basis and explain that this has come before us, this is what I've heard. What's your opinion on it, what are your thoughts on it? And see if they're willing to come forward and make a formal complaint.

Indeed, they may want to do it on an informal basis like we discussed earlier. Sexual harassment tends to be dealt with formally just because of the seriousness of it. So it's just all about explaining to the potential people involved what it might look like. Look at the particular procedure, what they will need to do, and whether or not they want to go forward with it. The person may not want to go forward with it because… well, for a multitude of reasons. But more often than not, it's quite a difficult process, particularly with recent case law and all of this.

So if the employee decides for whatever reason that they don't want to push or make it a formal complaint, again, I would just make a note on the file that there was a conversation had and the employee has decided for whatever reason that they don't want to go forward with it. In some cases, the employer will be able to push ahead with it if they have enough people come forward to make a complaint. You may be able to, but it could be procedurally difficult because as a matter of natural justice under the constitutional rights of any person who is accused of something has the right to have the complaint put before them and to…

Claire: Vindicate their name?

Bláthnaid: Yeah. So it really depends on the seriousness of it and how far the employer is willing to push it or indeed, the particular victim.

Catlan Trading Limited v McGuinness case - can you tell us a bit more about this?

Claire: Okay. And we've covered the Bellman case and the Dublin Bus v. McCamley. So if we could talk about the Catlan Trading Limited and McGuinness case, it emphasises the importance of having an anti-harassment or a dignity at work policy in place. Can you tell us a bit more about this?

Bláthnaid: Yeah, sure. This case involves a department store. A sales assistant in a concession shop had alleged that a colleague in a neighbouring concession store, she said that he'd been sexually harassing her. And when she made the complaint, he ultimately resigned in the end. But what this case is important for is policies. So under the defence, under Section 14A of the Employment Equality Acts, which provide that an employer, there is a defence of discrimination or indeed, harassment, if they can show that they have proper measures in place either are taking place or indeed harassment.

So in this case, there was no policy in place at the time. The employers in the case said that they didn't necessarily need to have a policy in place because they were quite a small organization and then they dealt with it in a prompt fashion. But the WRC didn't agree with that and said that you can't retrospectively try to mend your hand, effectively. You need to have the relevant policies there. And just because they bought in a decent policy after the fact does not mean that that's how they're going to deal with that.

So it's a very important case in showing how important it is. There was a quote from the case that says, "In order to avoid liability, an incentive for the respondent to establish that it had in place at the time at which the harassment occurred, arrangements intended to prevent and deal with the incurrence of such conduct."

So in this case, the claimant was awarded ultimately €5,000. It wasn't disputed between the parties that the sexual harassment didn't arise. It was agreed. It was whether or not the respondent could avail of this defense in section 14A. And on the basis that the policy came in after the fact, they decided that they couldn't. So the employee was awarded €5,000 for distress and the effects of the sexual harassment.

Claire: So it's really, yeah, just about having a sound, concise policy in place, sort of outlining separate guidelines.

Bláthnaid: Yeah. No matter what size the organization is, because some clients would say, "Well, there's only a few of us, so we don't need them." But if you can show that you've relied on that policy, you've followed it from start to finish, that the employees were aware of the policy, it'll go a strong way to creating . . .

Claire: Work in your defence.

Bláthnaid: Yeah, absolutely. Yeah.

Should Christmas parties be specifically included in your dignity at work policy?

Claire: Okay, great. And so should Christmas parties or any work-related event be included in your dignity at work policy? Say, for instance, if companies want to highlight the dignity policies at work, should they include a specific mention of Christmas parties in that?

Bláthnaid: Yeah, I think it's a good idea. Then it makes it easier when you're reminding people of the policy as well. It's all about awareness. A lot of people sort of forget that the Christmas party is an extension of the workplace. If you do, it doesn't need to be a detailed, two-page summary of the do's and don'ts of what you can do at Christmas party. But it could be as simple as a line to say, "Remember that when you work, social events, including the Christmas party, is an extension of the workplace. So be mindful of your colleagues in accordance with this."

Claire: That Catalan case emphasises that they shouldn't rely just because you have a policy. You really need to know that employees are aware of it, that it's easily accessible, that it's communicated clearly to them of what standards are expected and what sanctions could be imposed should they fall foul of that…

Bláthnaid: Yeah, yeah. It's sort of a little bit off topic, but there was another case that came out recently where an employee had posted a picture of a tire on the bus. It was his bus that he was driving and the wheel was loose. He posted it onto Facebook and he was ultimately dismissed. The employer said that they were able to do that because there was a social media policy that said that you couldn't post pictures. And the WRC found against the employer because they never told him about the policy.

Yes, the policy existed and yes, it said in there about social media, but he wasn't made aware of it, nor was he made aware that it could ultimately result in his dismissal. So it's key to not just have the policy, tell them where it is. Give training on it, maybe when they start and then do regular updates on it and make them aware that if you do sexually harass or harass your colleague, dismissal is a real possibility.

Claire: Sure, sure. So, yeah, it's not enough, really, to point to a mere policy in place. The employer must show that they took steps to ensure all staff were aware of it and they understood it.

Bláthnaid: Yeah. Absolutely, yeah.

What type of communication should be sent to employees prior to the party to minimise risk?

Claire: Okay, so we'll maybe just have one more question. We've covered that one. What type of communication should be sent to employees prior to the party to minimize risk? I suppose again, that's just advising them on the policies…

Bláthnaid: Yeah. Again, it depends on the organization and how the Christmas party is run. If you have something in your policy already on it, it'll make it a lot easier. But it could just be as simple as a simple line in the invite or the email to everybody about the Christmas party, just to say, "Just remember, this is an extension of the workplace. It is a work-organized event. If you have any questions, contact the HR or you can see our various policies online," or wherever they might be, yeah. But it just needs to be a sentence or two. I wouldn't go too heavy on it.

Tips for planning the office Christmas party

Claire: And would you have any tips for planning the party itself? I suppose there's such diversity in the workplace, it's important to remember that not all religions celebrate Christmas. So certain special requirements should be taken into account, I suppose, not to put pressure on certain employees if they don't want to attend, that that's perfectly acceptable. I suppose it's important to consider the venue in terms of access for disabled employees and whether there are any special dietary requirements and things like that.

Bláthnaid: Yeah, exactly. Yeah. In terms of organizing it, it shouldn't be a compulsory attendance. Nobody wants someone there that doesn't want to be at the party.

Claire: Exactly.

Bláthnaid: Ask an employee, do they have any specific dietary requirements. If there is somebody that is disabled in the office, just be mindful of where you pick so that it's going to be easily accessible for that particular employee. The world we live in now, it's going to be rare that you'll find a venue that that isn't going to be an issue. But it's meant to be a fun event, it's meant to be a work event. You want everybody to have a good time. So don't try and organize something where you know you're going to specifically exclude a particular group or a particular person.

Claire: Okay, great. Well, I think that's all we have time for. Thank you very much, Bláthnaid . . .

Bláthnaid: Thank you.

Claire: …for all your answers and advice and thank you to all our listeners, take care.

 

This article is correct at 23/11/2018
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Bláthnaid Evans
Leman Solicitors

The main content of this article was provided by Bláthnaid Evans. Contact telephone number is +353 632 3113 or email bevans@leman.ie

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