Gareth Matthews discusses how the festive season could get you down.
It is approaching that time of the year again when thoughts turn to Christmas and to the celebrations and parties to come. Many employers will be making plans for work parties and will be very keen to ensure that their employees have an enjoyable time and that the event comes as a welcome boost to morale.
Understandably, employers will not want to be seen as party poopers or burden these social occasions with too many rules and warnings about inappropriate behaviour. However, by being aware of the potential pitfalls and putting plans in place to prevent or reduce the likelihood of these occurring, employers can ensure that the party is enjoyable for everyone. You should therefore approach the necessary conversations in a positive manner, placing the emphasis on inclusion and enjoyment for all employees, rather than on trying to regulate employee behaviour.
It is increasingly important that employers take their responsibilities seriously in this regard, not least in relation to issues of discrimination and harassment. Any employer who does not take steps to protect themselves may well be on the receiving end of a very expensive Christmas surprise.
Harassment/discrimination
Most employers will be aware that they may be held responsible for the conduct of their employees. However, many employers perhaps won’t be aware that this can extend to the conduct of employees at work parties, which are considered ‘extensions of employment’, even if they take place away from work. This will include offensive remarks or gestures or other types of bullying which take place at the party.
To avoid responsibility, the employer will need to show that it took ‘all reasonable steps’ to prevent such conduct from occurring prior to the incident. The reasonable steps must have been taken prior to the conduct arising. The most common ways of doing this would be to:
a) Ensure that equal opportunity and/or anti-harassment policies are in place and regularly reviewed. These policies should make it clear what constitutes unacceptable behaviour and the consequences for any employee who engages in such behaviour;
b) Ensure that all employees are trained on these policies and in particular on how to deal with equal opportunities and anti-harassment issues should they receive complaints or witness any such conduct; and
c) Ensure that disciplinary and grievance policies are in place for dealing with complaints. These policies should set out how complaints will be investigated and the consequences for employees who are found to have committed acts of misconduct, including offensive conduct or harassment.
Any employer who does not have disciplinary and grievance policies or anti-harassment/equal-opportunities policies in place should implement and bring them to the attention of all employees as soon as possible. Employers who already have such policies should review them to ensure they are up to date and remind all employees of the content, including, in particular, what constitutes unacceptable behaviour and what action will be taken should any employee behave inappropriately.
Additionally, an employer’s own actions may constitute discrimination because some employees may feel that they have been treated less favourably than others if their particular needs are not properly catered for.
For example, employees of particular religions may have certain dietary requirements and/or require alternatives to alcohol. Others, such as those with disabilities, may need certain arrangements to be made in terms of access or facilities at the event venue. If an employer fails to address these points it will likely be exposed to discrimination claims.
Additionally, employers must ensure that the event is all-inclusive. This includes employees on long-term sickness leave or on maternity leave who may not have received internal emails/notices inviting them to the party. Employers should ensure that such employees are not left out or treated less favourably than others, by making sure that they are invited to the event and special arrangements are made in terms of access and facilities if necessary.
Furthermore, employers should ensure that any entertainment, such as comedians, will not be offensive to any attendees.
Disciplinary and grievances
Unfortunately, as most employers will be aware, excessive alcohol consumption can lead to an increase in unacceptable behaviour by employees. There is likely to be a greater risk of misconduct at a Christmas party. Accordingly, it is sensible for employers to have clear procedures in place to deal with such conduct if it occurs.
This is also another reason why it is important for employers to remind employees of what constitutes unacceptable conduct and the potential consequences of such behaviour in advance of a work social event. That way, employees can be left in no doubt as to what will happen should they behave inappropriately.
Employers should be consistent with how they deal with misconduct arising from the party. As always, any alleged misconduct should be investigated thoroughly and the disciplinary process handled in accordance with the ACAS Code on Disciplinary and Grievance Procedures and the employer’s own disciplinary policy. Employers should not overlook acts of misconduct simply because they took place at a party, as it would face difficulties and be accused of inconsistency in the future if it disciplined another employee for similar misconduct which took place in the workplace.
A common disciplinary issue arising from parties is employees failing to attend work or arriving late the next day due to the effects of alcohol. This is therefore a point that should be included in any discussion on unacceptable conduct (and the consequences) that takes place prior to the event.
Any grievances arising out of the party should be dealt with in the same way as any other grievance. Such grievances should not be downplayed or ignored because the acts complained of occurred at a party or away from the normal workplace. Again, like disciplinary proceedings, grievances should be handled in accordance with the ACAS Code and the employer’s own grievance policy.
Because alcohol is likely to play a role in misconduct arising out of a work party, it may therefore be appropriate to limit the amount of alcohol provided to employees, especially where the alcohol is free, and to remind employees prior to the event of the need to drink responsibly.
Social media
A more recent consideration is the use of social media at, or in relation to, work social events. Particular problems may arise where pictures or comments relating to the event are posted online which may either damage the employer’s reputation or constitute harassment/discrimination of employees for which the employer may be held responsible.
The key thing for an employer here is not to act disproportionately since not every online post will cause damage to the employer or amount to harassment. However, those that do should be dealt with in the same manner as any other act of misconduct. Provided the misconduct is dealt with reasonably and consistently, is investigated thoroughly and the correct procedures are followed, there is no reason why the employer cannot treat offensive or damaging online posts as acts of gross misconduct. Employers should of course also ensure that they handle correctly any grievances that arise from the posts.
Reminding employees regularly (and in particular before the event takes place) of what would be considered unacceptable in relation to online posts and the use of social media will hopefully reduce the likelihood of problems arising. Additionally, it will leave employees in no doubt as to the consequences of such behaviour if it does occur.
As well as potentially amounting to gross misconduct on the grounds of being offensive/discriminatory to fellow employees, or of causing damage to the employer’s reputation, inappropriate online comments may also amount to breaches of the employers internet or computer misuse policies, especially if the comments are made using the employer’s computers or network. Accordingly, employers should ensure that such policies are up to date and contain provisions covering the inappropriate use of social media.
Licensing
Generally, a private party with no charge being made for alcoholic drinks or entry is unlikely to require a licence for alcohol or entertainment. However, where alcohol is sold on unlicensed business premises or charges are made for entry (ticketed events) a Temporary Event Notice may need to be applied for from the local council’s licensing authority.
If music is played at the event copyright licences may be required from the Performing Rights Society and Phonographic Performance Ltd. Employers may wish to check with the organisations prior to the event to find out whether these licences are required.
Conclusion
The important thing for employers to remember is that the vast majority of work parties will be free from any of the potential problems outlined above.
However, by taking the time to consider the issues hopefully employers will be able to plan ahead for dealing with those occasions when things don’t turn out quite as expected.