LAYTONS
It's Christmas time There's no need to be afraid
LAYTONS Our Sectors • • • •
Technology, Communications & Digital Media Construction, Land & Planning Personal Affairs, Private Wealth & Philanthropy Retail & Hospitality
Our Expertise • • • • • • • • • • • •
Banking & Finance Charities Commercial & Corporate Data Protection & Information Disputes Employment & Immigration Family & Matrimonial Insolvency & Restructuring IP & Technology Real Estate Tax Trusts, Estates & Private Client
This information is offered on the basis that it is a general guide only and not a substitute for legal advice. We cannot accept any responsibility for any liabilities of any kind incurred in reliance on this information.
It's Christmas time There's no need to be afraid...
So the office party season is upon us once again‌ Often a fertile breeding ground for over-drinking, boisterous behaviour and ill-advised amorous advances, the Christmas party provides a host of potential pitfalls for employers. We therefore thought a cautionary note may be in order to ensure the after effects of your party are limited to those that can be remedied by a Berocca and a greasy breakfast.
John Skelly Partner | Employment john.skelly@laytons.com +44 (0)20 7842 8000
It's Christmas time | December 2016
Different setting, same rules The safest approach is to consider the office party as an extension of the workplace and remember the employment relationship subsists regardless of the social nature of the occasion. This is best illustrated by a Court of Appeal decision in which the promise of a pay rise made at an office party was considered capable of amounting to a contractually binding promise! Be mindful that actions of employees during the party are likely to be deemed to be “in the course of their employment” and therefore could be considered actions of the employer. So when the drinks start flowing and inhibitions fall away, an employer’s liability for its employees’ conduct does not. So every unwelcome lunge or grope at the party may be treated as being the action of the employer as well as the actual groper. And when it comes to deciding who to bring a claim against, as the option with deeper pockets, the employer will almost invariably be the preferred option.
4
It's Christmas time | December 2016
Mistletoe and folly One of the main pitfalls is the threat of claims for sex-related harassment. This is “unwanted conduct” relating to a person’s sex and/ or “conduct of a sexual nature” that has the “purpose or effect of either violating a person’s dignity or of creating an offensive, intimidating or hostile environment”.
It can range from an inappropriate joke to a serious sexual
A risqué comment, whether intended in jest or not, can also
advance. It can be a major “one off” occurrence or an
have decidedly unfunny outcomes. The city lawyer who
accumulation of more minor incidents.
quipped that a colleague had “great baps” was not smiling when the matter ended in Tribunal proceedings. The matter
For example, budding Secret Santas should be aware that
eventually settled for a sizeable sum and serves as a warning
the giving of inappropriate gifts can constitute sex-related
that misguided utterances can be costly for employers.
harassment. The notorious example is that of a partner in a city firm who presented an employee with a phallic-
Sex-related harassment also includes inappropriate
shaped festive chocolate, causing much embarrassment to
physical contact. A good rule of thumb is if the contact is
all concerned and committing an act of harassment in the
unwelcome, it may well constitute harassment. A lingering
process.
touch of the shoulder of an employee in a sleeveless dress has been deemed to amount to sex-related harassment as it transcended the boundaries of ordinary social contact. Obviously context is essential when considering physical contact; however, the safest starting point is to assume that the office party is strictly a non-contact sport!
5
It's Christmas time | December 2016
Managing the mayhem For those who do dare to party, it is not all bad news. An employer’s liability for harassment can be avoided provided the employer has taken all reasonably practicable steps to prevent the occurrence of the harassment. To demonstrate that such steps have been taken, we would recommend the following:
•
dispel all myths that “anything goes” at the Christmas
These simple steps should serve to limit both the scope for
party. Make employees aware of the standards of
problems occurring in the first place and the liability in the
behaviour expected and of the consequences of
event that an incident does occur.
inappropriate behaviour Despite its hazards, the Christmas party remains a fitting way •
refer employees to the company’s Harassment and
of generating good will and recognising the contribution
Equal Opportunities policy and gently remind them
made by employees throughout the year. With a sensible
that this will apply for the duration of the evening
approach, this yule-tide institution can continue to be enjoyed (and dreaded) by all for many years to come!
•
control the flow of alcohol and provide non-alcoholic alternatives. Most incidents occur when people get too drunk and nothing makes people more likely to over-indulge than an unlimited free bar
•
where entertainment or speakers have been engaged to perform or talk at the party, check in advance that their proposed pieces do not contain or constitute any form of offensive material
6
Have fun and Happy Christmas!
Sectors
Expertise Technology, Communications & Digital Media
Retail & Hospitality
Employment & Immigration
Guildford
London
Manchester
Ranger House, Walnut Tree Close Guildford GU1 4UL +44 (0)1483 407 000 guildford@laytons.com
2 More London Riverside London SE1 2AP +44 (0)20 7842 8000 london@laytons.com
22 St. John Street Manchester M3 4EB +44 (0)161 214 1600 manchester@laytons.com
laytons.com
Š Laytons Solicitors LLP which is authorised and regulated by the Solicitors Regulation Authority (SRA Nº 566807). A list of members is available for inspection at the above offices.