Office Christmas Parties – Top Tips To Avoid A New Year Tribunal Claim
Key Contact: Claire Knowles
Author: Conrad Hazlitt
It’s that time again, the annual office Christmas party… time for colleagues to let their hair down and enjoy themselves. Whilst this is certainly true, and the Acuity Employment team don’t want to be the party poopers, you don’t have to be an employment lawyer to see how bringing colleagues together outside of working hours and then throwing alcohol into the mix, can be a recipe for HR headaches.
Employee behaviour at employer organised events, such as a Christmas party, will generally be considered – at least from a legal standpoint – to be done “in the course of employment”, this applies even if the event takes place off site and out of hours. In other words, your organisation will usually be responsible for the employee who drinks a little too much at the Christmas party and tells that risqué joke, or potentially worse…
Here are our top five tips to help ensure that any post party headaches are limited to the next morning, and don’t mean a new year tribunal claim.
- Remind staff of what is expected of them
Our number 1 practical tip is to circulate a memo in advance of the Christmas party reminding staff that as much as they’re encouraged to let their hair down, this is a work event and so the normal workplace standards of behaviour will still apply. A timely memo should help discourage inappropriate conduct, but if any issues do arise, it will give your organisation a greater mandate to take disciplinary action where appropriate. We recommend that your memo reminds staff of what is expected of them and explains that instances of misconduct will be dealt with in line with policy. A good memo will be circulated close to the time and get the message clearly across without stifling the festive mood.
- Invite (almost) everyone
To prevent any suggestion of discrimination, when organising your Christmas party remember to invite staff away on long term absence, such as those on maternity/paternity leave or on long-term sick leave. However, whilst you want to ensure that everyone feels included, make sure not to pressure people into attending; keep in mind that some employees may have childcare responsibilities that make it difficult for them to attend out of hours events whilst others may prefer not to attend for religious reasons.
We recommend that, as a general rule, you only invite staff who are paid through your payroll to the office Christmas party. IR35 might seem a long way removed from Christmas party preparations, but one factor to be considered when determining worker status is how integrated into a hirer’s organisation someone is. Case law suggests that attending staff only events (such as an office Christmas party) will point towards a higher degree of integration, and therefore potential worker status.
- Plan with the diversity of your workforce in mind
Some people choose not to drink, whether for personal or religious reasons, whilst others might have special dietary requirements. To ensure everyone feels included, make sure that your Christmas party offers plenty of non-alcoholic drink options and caters to a variety of diets. Also, if you’re booking a venue, make sure that the venue is wheelchair accessible and in a location that people can access (remember, some of us don’t drive!). Lastly, some people don’t celebrate Christmas and so we generally advise against your office party going overboard with the Christmas vibes.
- Management should set the example
How your senior staff carry themselves at work events sets the tone for others to follow. If management are knocking the drinks back, others might take that as a signal to go a step further. We recommend that senior management be reminded of their responsibilities to set a good example.
- Be clear on when the party ends
From a legal perspective, an employer is usually held vicariously liable for an employee’s actions committed “in the course of employment”. The test is whether the employee’s actions were so closely connected with their employment that it would be ‘fair and just’ to hold the employer vicariously liable. What this means is that whilst your organisation will generally be held responsible for events at the ‘official’ Christmas party, it won’t usually be on the hook for what goes down at the ‘unofficial’ afterparty, provided of course that the latter isn’t simply an extension of the former. However, as the case of Bellman v Northampton Recruitment Ltd  shows, it’s not always that simple. In that case, the employer was held vicariously liable for the violent actions of its drunk managing director notwithstanding his actions took place several hours after the ‘official’ Christmas party had ended and at a separate location to the original event.
In practical terms, we recommend that your organisation is clear on when the party starts and when it ends so that it can distance itself from any unofficial (and potentially messy!) after-parties. Make it clear that if colleagues do move on to another venue or continue after the official event has ended, this is to be viewed as a separate event and not the organisation’s responsibility.
The above tips assume that your employees are generally responsible and have taken note of recent cultural shifts in attitude following, for example, the Me Too movement. If however you have experienced issues in the past, you may want to take a more hands on approach such as distributing limited alcoholic drinks tokens or circulating a more prescriptive pre-party memo.
There are active steps that you can take to limit the extent of your organisation’s vicarious liability for what might take place at a work social. The Acuity Employment Team are on hand to advise how you could do this. But, whilst prevention is better than cure, if you do experience issues the Acuity Employment team will also be on hand the day after the party should you need us!