When Bad Christmas Parties Happen To Good People - Part 2

Employers are liable for what happens at out of hours work social events. Whilst the vast majority of Christmas parties pass without incident, when what happened at the Christmas party does not stay at the Christmas party, managers and HR may end up with a headache that lasts much longer than a typical hangover.

Christmas turkey number 2 – Misconduct

Harassment is not the only complaint that could arise out of a work function. Surprisingly often, disagreements can, with the aid of too much mulled wine, disintegrate into conflict.

For example, in one case, two employees, Mr A and Mr B, went to Ascot for the day on a client event. Several drinks into the event, Mr A put his arm around Mr B’s sister, resulting in Mr B kneeing him in the leg. Mr A proceeded to punch Mr B in the face. After the event, Mr A and Mr B went with their colleagues to a bar where Mr B then sent a series of texts to Mr A in which he threatened Mr A with physical violence but did not act on them.

The end result? Mr A was dismissed for gross misconduct and Mr B was given a final written warning.

The employer’s approach to this helped to minimise their exposure:

  1. Surprisingly, it had reminded Mr A and Mr B before the event that it was a work event and appropriate behaviour was expected.

  2. It conducted an investigation after the event.

Employers should be aware however that they should treat disciplinary matters consistently and failure to do so could create an exposure. For example:

  1. If employers have previously ignored a certain type of behaviour and this has led employees to believe that it will be overlooked or not treated seriously, then uncharacteristically treating something as a disciplinary offence may create an exposure. For example, if the CEO danced on the chairs at last year’s Christmas party without sanction, disciplining employees who danced on the table this year would be unlikely to be fair.

  2. Treating those in truly parallel circumstances differently. An example would be dismissing one employee who had an equal part in an argument with another at the Christmas party if the other employee involved is given no sanction.

However, employees should be cautious of relying upon this too much as the Tribunal is likely to interpret “truly parallel circumstances” narrowly. In the case above, it held that it was not unfair to dismiss Mr A for punching Mr B but not dismiss Mr B for kneeing Mr A.

Rolleen McDonnell is a solicitor at leading employment law firm BDBF.