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Keep it the season of goodwill

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As the season of Christmas joviality lurches upon us, local authorities have an awkward task ahead of them – to lead the celebrations for their staff without risking costly legal action and employee compensation.

Before the mulled wine is passed around, how can employers make it through the Christmas period by minimising risk without looking like Scrooge?

The crux of the issue is this: employers are responsible for the conduct of their staff in the performance of their duties.

This is how employers can end up being liable for things such as sexist jokes, ageist remarks and unwelcome advances by one member of staff towards another, if these things happen at work.

But this responsibility is not confined to events that take place in the office.

Discrimination

The English courts have extended it to cover social functions that are related to work, such as get-togethers in the pub after work. In one case, a male employee pulled his bar stool close to that of a female colleague, flicked her hair and rearranged her collar.

This was held to amount to unlawful sex discrimination for which the employer was liable.

It is therefore not surprising that employers can also be liable for what happens at a more formal, organised event, such as a Christmas party.

The spirit of the season can easily be shattered for those employers on the receiving end of a sexual harassment claim if things get out of hand during an office Christmas celebration - or possibly even one for personal injury, should there be an outbreak of fisticuffs. The knock-on effect of such cases can be negative publicity, particularly for local authorities, where stories of staff misbehaviour seem to be good fodder for newspapers.

Minimising risk

Prevention is better than cure with all matters employment-related, so here is our Christmas list of actions authorities can take to minimise the risk of these problems arising.

If the party is memorable for all the right reasons, the Christmas cheer just might survive until January

James Wilders, partner in the employment team at national law firm Dickinson Dees

First and foremost, issue clear guidelines in advance of the party taking place. These should set out clearly what kind of conduct is acceptable and what is unacceptable - where the boundary lies between “making merry” and seasonal excess. This information ought to be a matter of common sense but it is important to inform everyone where the boundaries lie, and that crossing those boundaries could result in disciplinary action.

Where appropriate, refer to your disciplinary procedures (including relevant examples of gross misconduct).

Before the event senior managers should agree between them who will be responsible for keeping an eye on proceedings. It is far better to intervene early on to prevent an awkward situation becoming a much bigger problem later.

It is impossible to prevent claims arising entirely - short of actually holding no Christmas celebration at all. However, the above steps should provide a defence to a local authority employer, on the grounds that it will have done all it reasonably could to prevent misconduct occurring.

These steps also go towards complying with the equality duty to protect employees from unlawful discrimination and harassment.

Protecting employees

Next, take practical steps to protect employees. For example, employers should consider the drink-driving implications of the party. It is arguable that the employer’s duty extends to making travel arrangements home from the event. Non-driving options such as minibuses and taxis should therefore be publicised and encouraged.

In addition, if employees have to drive as part of their job, the employer could face difficult issues if they are still intoxicated during the next working day.

Finally, for those whose parties start at lunchtime, it should be made clear whether employees are expected to return to work in the afternoon. This is particularly important where alcohol is available and jobs involve driving, operating machinery, or having contact with the public.

A reminder of expected behaviour, referencing the disciplinary procedure for being under the influence of alcohol at work, would be appropriate. Also, consider requiring staff to book half a day’s annual leave, should they envisage being under the influence following a lunchtime celebration.

Employers have to apply a common-sense approach. A balance needs to be struck and they will want to avoid complaints about being excessively politically correct or being a killjoy.

Still, setting out clearly and early on what is - and is not - expected and making sure that practical arrangements are in place is the safest way forward.

If the party is memorable for all the right reasons, the Christmas cheer just might survive until January. 

James Wilders, partner in the employment team at national law firm Dickinson Dees

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