Office christmas parties: festive fun without the legal hangover

The festive season is here, and for many workplaces, that means the much-anticipated office Christmas party. These celebrations are great for boosting morale and rewarding your team, but they can also come with their own set of challenges, and often the line between professional and personal behavior can blur.

This year, there’s an extra reason for employers to tread carefully, with new legislation emphasising a specific preventative duty to address sexual harassment, even at workplace social events, alongside the usual issue of employer vicarious liability for all types of harassment.  While no one wants to be viewed as a Scrooge, it’s crucial to ensure that everyone can let their hair down in a way that’s safe, respectful, and free from misconduct.

New employer duties – the Worker Protection (Amendment of Equality Act 2010) Act 2023

Beyond the well-known law of vicarious liability under the Equality Act, there is a new positive legal obligation for employers to take reasonable steps to prevent sexual harassment in the workplace, under the Worker Protection (Amendment of Equality Act 2010) Act 2023.  Guidance from the Equality and Human Rights Commission has confirmed that this duty extends to organised work parties outside of work hours, since these will be considered to be within “the course of employment”.

One notable aspect of the new law is the requirement to address third-party harassment. Employers are now responsible for taking reasonable steps to ensure that external attendees – such as clients, contractors or vendors – do not harass employees.  Ignorance is no longer a defence; failing to take proactive measures could result in legal liabilities and reputational damage. Under the new Act, the employment tribunal can now increase compensation awards for sexual harassment claims by up to 25% if the employer fails to demonstrate that reasonable preventative measures were in place. This makes proactive planning essential for any employer hosting festive events.

Blurred Boundaries: Work and Social Settings

Social events, particularly Christmas parties can make it easier for professional boundaries to become blurred, and employers must remind staff that these events are an extension of the workplace and that workplace policies still apply.  Employers should carry out a specific risk assessment and then set clear expectations (for example reminding employees of what is unacceptable conduct, or limiting alcohol consumption).

Both employees and employers should remember that excuses for any unlawful behaviour, such as “I was drunk” or “It was just a joke” will hold no weight in tribunal cases.

Employers should bear in mind that they may be able to avoid liability for employee harassment (of any kind) if they have taken “all reasonable steps” to prevent such acts  (s.109 (4) of the Equality Act 2010). This can be seen in the case of Leader v Hossack (2019).  Here, an employer demonstrated that it had a clear dignity at work policy, training for all staff, and a culture of allowing employees to raise concerns.  The successful use of this defence meant that the employer (Leeds City Council)  was not liable for discriminatory acts carried out by employees and was removed from the claim.

Practical Steps for Employers

The thought of ensuring compliance with the new 2023 Act could be a daunting one for employers, however, there are a number of proactive steps that they could take to minimise risks during any upcoming Christmas parties or events:

1. Plan Ahead: Conduct a risk assessment to identify potential issues based on past events. Document the process, as tribunals value transparency in decision-making.

2. Limit Risks:

• • Bullying, threats and intimidation
  • Victimisation and discrimination
  • Putting undue pressure on the employee
  • Saying that if the offer is rejected the employee will be dismissed
  • Choose safe venues and provide transportation options, like taxi providers and their contact information.
  • Set alcohol limits and monitor its distribution – reminding employees to know their limits and to enjoy themselves responsibly.
  • Brief employees that any Christmas party is an extension of the workplace and that company policies remain in effect during the event. Employees should be reminded of the company’s social media use policy, in addition to harassment and bullying policies.

3. Learn from the Past: Reflect on previous events to avoid recurring issues.

4. Dealing with Issues: Immediate and Long-Term Actions

If something does go wrong, employers must act swiftly and decisively. If an employee makes a complaint of inappropriate behaviour following an event or party, then it must be taken seriously by the employer. Matters should not be brushed off or pushed down the road.

In those situations, employers should look to promptly follow internal disciplinary and grievance procedures to address incidents and keep matters strictly confidential. An employer should seek expert advice if unsure about the next steps, and importantly, use the incident as an opportunity to reinforce a culture of respect and accountability.

Conclusion

While the risks of workplace parties may seem daunting, cancelling them doesn’t need to be the only solution. Proper planning and preventative measures can create a safe and enjoyable event, ensuring your team enjoys the festivities without compromising on respect and professionalism.

Employers are not legally responsible for every incident at a party, however, failing to take reasonable steps can lead to liability as well as increased damages in tribunal cases.

By taking proactive measures, communicating expectations clearly, and acting decisively when issues arise, employers can confidently navigate the party season and ensure they stay off the naughty list!

This update contains general information only and does not constitute legal or other professional advice.