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Christmas Parties – should employers become Scrooges?

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Posted by Steph Marsh on 3rd December 2021

It’s that time of year when talk of the Christmas party dominates the office; whether that be the excitement beforehand, or the subsequent gossip and stories.

As an employer, you could be vicariously liable for the actions of your employees at the Christmas party, so how can you make sure that you are suitably protected but without organising a boring party and being seen as a Scrooge?

Can an employer be responsible for an employee’s actions?

Unfortunately so – an employer can be liable for the actions of their employees under the doctrine of vicarious liability, if the act is committed in the course of their employment. Whilst there are various defences available to an employer, the general rule is that if there is an employment relationship between the parties and the wrongful conduct is closely connected to the acts that the employee was authorised to do or whilst they were acting in the ordinary course of their employment, then vicarious liability will more than likely apply.

Whilst technically employees aren’t ‘working’ whilst at the Christmas party, it is seen as an extension of the workplace, even if it takes place outside of the actual workplace and working hours. This means that employers are more than likely going to be held accountable for their employee’s actions.

Should we provide alcohol?

Most people like to relax with a drink or two at the Christmas party; but should an employer provide any alcohol or a free bar?

Well, that’s a tricky one – in the case of Williams and others v Whitbread Beer Co, the employer provided staff with a free bar (it’s clear where this is going already….) and of course, some employees took full advantage! After seven hours of almost solid drinking a fight ensued which resulted in three employees being dismissed. They argued that their dismissals were unfair as the free bar had been provided and therefore the employer condoned their behaviour. Surprisingly enough, the Tribunal agreed with them!

However, as the case of Gimson v Display By Design Ltd shows, some dismissals for conduct will be fair. On the walk home after the Christmas party, two colleagues had a disagreement and consequently another colleague who tried to intervene and restore peace was punched. The employer sacked the attacker, who decided that he had been unfairly dismissed as the attack was carried out outside of his employment and began Tribunal proceedings. However, the Tribunal disagreed and held that the events after the Christmas party were sufficiently close to be connected to work and that “but for” the party, the colleagues would not have been together.

The dismissal was deemed reasonable and the employee’s claim was rejected.

Can we discipline staff for their conduct at the party?

Absolutely! In the same respect that an employer can be liable for an employee’s actions, employers can still hold employees to account for their behaviour, whether that be harassment, discrimination, bullying or any other misconduct.

If an employer is considering taking action against the conduct of an employee following the Christmas party, this should be done without delay and in line with the business’ disciplinary procedure. But it goes without saying that employers should not try and discipline an employee at the party itself – chances are they’ll be slightly merry and won’t remember it anyway!

What can we do?

Advise employees that whilst you want them to let their hair down and enjoy themselves (again, you don’t want to be a Scrooge!), that any misbehaviour or behaviour which could bring the business into disrepute may lead to disciplinary action.

It might be beneficial to provide clear guidance on the types of behaviour that will not be tolerated along with the potential consequences that could result.

Employers should also consider how employees are going to get home after the party. Of course, it wouldn’t be practical to provide everyone with taxis straight to their front doors, but employers could be liable if an employee drove home whilst over the drink-drive limit from the party. Employers might want to provide some form of transport or provide subsidised taxi drop-offs.

Chances are, there will be at least one person that enjoys themselves that bit too much, and how an employer handles the situation could have a big impact on any future proceedings. Whilst employees should have fun at the Christmas party, it’s worth bearing in mind that their conduct could have a knock-on effect for the business and its reputation.

If you require any assistance or would like any advice on how to handle Christmas parties or any misconduct issues, then please get in touch with a member of the team on 01752 663295.