A useful guide provided by Pinsent Masons
Do not insist that all staff attend the office Christmas party. Christmas is a Christian holiday, so do not pressure someone to attend if they do not want to on religious grounds. If the event is out of hours, remember also that some people have family responsibilities that may prevent them coming.
Decorating the office
It is a common misconception that Christmas decorations breach health and safety rules. As long as a proper risk assessment is carried out looking at where and how decorations are sited – particularly those that could pose potential fire hazards – you will not normally fall foul of health and safety rules. However, your insurance may not cover damage caused by untested electrical equipment so make sure you switch off tree lights before going home.
The Equality Act does not ban traditional customs under its religious discrimination provisions. Most Christmas decorations such as tinsel, lights and trees are secular and not inherently religious, so it would be difficult to argue that they could cause offence to non-Christians.
If you are running a Secret Santa, make sure staff are told that gifts should be inoffensive. Some gifts, for example lingerie that is hilarious to the giver and onlookers but not to the recipient, have sparked complaints in the past.
The office Christmas party is still a work-related activity, so make sure that you set the boundaries of acceptable behaviour while acknowledging that employees will want to let their hair down.
Provide clear written guidance to all employees about acceptable standards of behaviour at work-related social events, equal opportunities and harassment, as well as the disciplinary sanctions that could result from breaches of the rules. Make it clear that fighting, excessive alcohol consumption, the use of illegal drugs, inappropriate behaviour, sexist or racist remarks and comments about sexual orientation, disability, age or religion will not be tolerated.
In 2012, an employee who punched a colleague in the face while walking home after their work Christmas party was dismissed for gross misconduct. His claim for unfair dismissal failed at Tribunal, as the events were sufficiently closely connected to work to have an impact on the working situation.
While party policies may seem Scrooge-like, they are a valuable precaution for employers and can help to demonstrate that reasonable action has been taken to protect employees.
Despite its festive atmosphere, an office Christmas party is legally an extension of the office environment even if it is held offsite and outside working hours. Employers are therefore likely to remain liable for acts of harassment, discrimination, assault or other unwanted conduct carried out by their employees. If any such allegations are made during or after the event, employers should follow their usual disciplinary process and ensure that any complaint is investigated thoroughly before action is taken.
Do not discipline any employees at the party itself. Send them home if necessary and deal with the incident when you are back at the office – and sober.
While you may want to provide a number of celebratory drinks for employees to reward them for their hard work over the year, remember that maintaining a free bar throughout the evening will encourage excessive alcohol intake. You may therefore want to consider restricting the amount of free alcohol available and you should be prepared to ask individuals to take it easy if they appear the worse for wear. Making plenty of food available early on and serving a meal may also assist. Putting on entertainment, such as a disco, also prevents employees from simply propping up the bar.
In one case, three employees got drunk and had a fight after seven hours of drinking at a free bar supplied by their employer. They successfully argued that their resulting dismissals were unfair. A relevant factor was that the employer had provided a free bar, and therefore condoned their behaviour.
Finally, be respectful of employees who, for whatever reason, do not drink. Ensure a plentiful supply of alcohol-free alternatives and lots of water. Keep an eye out too for any younger members of staff – employers cannot allow under-18s to drink.
Remember that employees with certain religious beliefs may be vegetarian or unable to eat certain foods. Do not leave it to chance – ask beforehand about any special dietary requirements so that these can be accommodated.
Remind staff of your social media policy, and the consequences of posting pictures online that may bring the company into disrepute, or infringe the rights to privacy of colleagues. With smartphones in hand and the popularity of Twitter, Facebook and Instagram, it is important that employees understand the possible consequences of breaching the policy.
Criminal offences and drugs
It is an offence for an employer to knowingly permit or even to ignore the use, production or supply of any controlled drugs taking place on their premises. In addition, employees who are convicted of criminal offences involving drugs, sexual misconduct or drink driving may also damage their employer’s reputation or undermine trust and confidence. In these cases you may well be justified in taking disciplinary action against the employee, and this could result in a dismissal for gross misconduct.
Alcohol can loosen tongues so managers should avoid conversations about performance, promotion, salary or career prospects. In one case an employee claimed his boss had promised him a higher salary ‘in due course’ during a chat at the Christmas party. His pay remained static so he resigned and claimed constructive dismissal. The employer won the case because the nature of the promise was vague and uncertain. However, a promise made at a Christmas party is still a promise – even if the employer cannot remember the conversation.
Consider how your employees will get home after the party. Issue advice in advance about not drinking and driving – an employer may be held responsible for its employee driving home from an office party. Think also about providing transport home, such as laying on coaches to leave at set times during and at the end of the event or ending the event before public transport stops. At the very least encourage employees to think about how they will get home, provide phone numbers for local registered cab companies and suggest employees check the time of their last train home.
The morning after
Be clear about your expectations regarding absence the next day – but don’t expect miracles from those who do turn up for work. Ensure that all staff know the extent to which you will be lenient about coming to work late and that, if your expectations are breached, disciplinary action may be taken. Be careful – a past history of festive tolerance, particularly where alcohol consumption at lunchtime is concerned, could be used as evidence that disciplinary action against an individual is unfair.