Avoid a legal hangover after the office party

Staff enjoy letting their hair down and drinking too much at the office Christmas party, but it’s the employers who must pick up the bill – in more ways than one.

Employment tribunals make some allowance for the party spirit but, in the past, they have viewed the event as an extension of the working environment and held that a person attending an office party, even outside normal hours, is acting “in the course of their employment”. Anti-discrimination legislation says anything done by an employee in the course of their employment is treated as being done by the employer, as well as the employee.

Staff can, of course, face disciplinary action as a result of their conduct. The danger for the employer, however, is that this doesn’t prevent them being held to be liable for an employee’s behaviour towards colleagues – such as discrimination or harassment. As a result, employers can face claims for constructive dismissal, or for damages for breach of contract for failing to take steps to protect staff or provide a duty of care.

Past tribunals have found that suggestive comments, touching and further unwanted conduct and racist/sexist jibes fall foul of the 1975 Sex Discrimination Act and the 1976 Race Relations Act.

Since December 2003, employers have had to be aware of new laws covering harassment on the grounds of sexual orientation, religion or belief. So far there have been few tribunal cases in this area, but this is the time of year when discrimination and harassment of this type becomes more likely.

While this may put some employers off staging an office party, the regulations do allow them to escape liability if they can show they took reasonably practicable steps to prevent such acts occurring. An employer wanting to use this defence should:

• put in place a clear equal opportunities and anti-harassment policy. This must show that any form of harassment will not be permitted and must refer to work-related events that take place off the premises. Such a policy must be delivered through specific training sessions, thereby giving evidence that an employer is committed to equal opportunities
• express clearly to staff that misconduct will result in disciplinary action and that some circumstances – such as discrimination out of hours – may amount to gross misconduct
• ensure employees are well aware of their right to complain and of the procedure they must follow if faced with such behaviour.

In short, employers are under an obligation to provide staff with a working environment free from harassment and discrimination, even at times when it may be difficult to exercise control over staff. If employers fail to do this, a hangover the next day will be the least of their problems.