After almost three years of Zoom Christmas celebrations perhaps this year will be different for many of us. Colleagues around the country will be spending evenings over the next few weeks heading out together to celebrate a job well done.
Of course we've all got a story of a Christmas party where someone got a bit too drunk or things got a little out of hand. The question is: can you be sacked for bad behaviour at a Christmas party?
Despite the fact the work Christmas party is often held at a location that is not on company property the occasion is seen as being "in the course of employment". This means an employer can be held liable for their employee’s actions as a result of "off-duty" conduct on such occasions. It also means an employee can be disciplined for their behaviour.
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Alexandra Bullmore, a leading employment law specialist at Derby-based law firm Smith Partnership, has explained that the employer can be held responsible for the action of an employee on the night out. Alexandra said: "Employers will potentially be liable for anything an employee does at the Christmas party that may be discriminatory against another employee and so they will be keen to keep a tight rein on employees during any Christmas functions that are work-related.
"The usual work policies and procedures, including those to do with gross misconduct, will apply at any work organised Christmas party. Employees should be very careful to ensure that they do not do anything that may mean disciplinary action is brought against them as they could even be dismissed for the likes of drinking too much, getting involved in any office gossip or banter that could be considered discriminatory, or make any unwelcome advances towards any colleagues." Essentially all the normal rules of gross misconduct policies and procedures also still apply at the work Christmas party and this should be made known across the workforce to reduce the chances of any mishaps.
Employee liability
Owen John, a partner at the south Wales law firm Darwin Gray, suggested companies email employees to remind them that misbehaving and bringing the organisation into disrepute won’t be tolerated and they can still be disciplined for their actions even if they take place outside of the workplace. "Conduct which takes place at a Christmas party, even if that Christmas party was held off-site, will be treated the same as if it was carried out at the workplace itself," said Mr John. "In the same way an employer may be ultimately responsible for the actions of its employees at a Christmas party just as it may be responsible for the actions of its employees in the workplace. Therefore, by way of example, if Employee A sexually harasses Employee B at a Christmas party Employee B could potentially bring legal action against the employer (who will ultimately be responsible for the action of Employee A) as well as Employee A." Sarah Austin of Cardiff- and London-based law firm Capital Law backed up that point and added : "It is important to remember that an employer can be vicariously liable for the acts of their employees and as a result an employer can be held liable for acts of sexual harassment by their employees during Christmas parties."
Drunken behaviour
If the company puts on a free bar employees might feel they cannot be held responsible for all of their actions. Ms Austin recalls an example where three employees successfully argued that their dismissals for drunken behaviour at a work training event were unfair with a relevant factor being that the employer had provided a free bar "thereby condoning their behaviour".
But Mr John believes that a free bar is irrelevant. He said: "If the employee commits an act of gross misconduct an employer can discipline that employee and, if it's sufficiently serious, potentially dismiss that employee. The fact that the employer put on a free bar will be no defence for the employee."
Fighting
"Fighting constitutes gross misconduct, which should be dealt with formally under the company’s disciplinary procedures," Ms Austin said. "Although fighting will most likely justify dismissal it is imperative that employers carry out as thorough investigation as possible. In recent cases a failure to identify who ‘threw the first punch’ and resulting inconsistent treatment of those involved has led to findings of unfair dismissal.
"It is important to take pre-emptive action to ensure that employees are aware of their obligations prior to the event. That way the employer limits their exposure to any unauthorised conduct which an employee may then go on to commit."
Mr John cited the case of Bellman v Northampton Recruitment Limited. Here an employer was ordered to pay compensation to an employee who suffered brain damage after he was punched by the managing director, who had been drinking, at a work Christmas “after-party” in a hotel. Even though the incident did not happen at the party itself the employer was held to be liable for the managing director’s actions.
Gross misconduct
According to Ms Bullmore the most common examples of gross misconduct at work Christmas parties are allegations of harassment, insubordination, and damage to company property, which depends on where the party is held. She said: "A lot of these issues arise from dampened inhibitions due to alcohol consumption and it’s important that employers deal with this effectively following company procedures to ensure any disciplinaries or dismissals are made fairly and with just reason as well as protecting employees of the business from the behaviour of other employees.”
What can employers do to keep things professional while still allowing employees to have fun?
There are various measures that can be put into place by employers ahead of the Christmas party to keep things regulated while still ensuring employees have a good time. Ms Bullmore said: "The best thing to do is to comply with the obligations of employers under the Equality Act 2010 such as introducing specific policies regarding the festive period or resending out the policies already in place ahead of any parties or gatherings taking place.
"Employers should also take the opportunity to remind their staff of what is acceptable behaviour and what is not, reinforcing the consequences of unacceptable behaviour – employees need to be aware of the boundaries. Limit any alcohol available, such as not having a free bar for the whole night. Avoid any after-parties being related to work as this where most issues will arise as it gets later.
"Avoid managers having any conversations around performance and salaries with their employees whilst at the party. After a couple of drinks these conversations may go awry so it’s best to keep things light-hearted to avoid any awkward conversations in the new year where employees believe they have been promised something that is not actually achievable for the company such as pay rises."
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