When Bad Christmas Parties Happen To Good People - Part 3

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 3 – Alcohol and poor performance

Most employers will probably expect a dip in productivity the day after the Christmas party. However, there is a line between the allowances that an employer will make and those that it will not.

Employees who are under the influence at work can create huge problems for employers:

  1. The impaired judgement that results can create high levels of risk for the business/institution and its clients/users.
  2. Employers also have duties of care to their employees - allowing employees to work whilst under the influence could breach these duties and will certainly do so where their job involves driving.

Employers should have clear policies on alcohol and substance misuse in their handbooks and make sure employees are aware of what the rules are. For example, by making it clear that being under the influence of alcohol at work may be considered to be gross misconduct.

However, employers should nonetheless be cautious when considering dismissing employees for suspected alcohol use and, even if they think that they have a fair reason to dismiss, make sure that they are acting reasonably.

In one case, a doctor had been reported to have smelled of alcohol at work. The Trust suspended him and asked him to visit occupational health. The doctor attended one appointment with OH but, after the Trust considered that OH had overlooked one factor, refused to attend a subsequent appointment. The Trust decided to dismiss the employee as a result. The Employment Tribunal found that this dismissal was unfair because: (i) from its findings, there was no evidence to show that the employee had not been fit to carry out his duties; and (ii) it was not proportionate to have dismissed the employee for failing to attend an OH appointment.

However, employees are not the only ones who may fall foul of the festive season. It can also prompt employers to make some mistakes that they may not make at other times of the year:

  • The knee-jerk reaction: Tales of what happened at the Christmas party have often been passed from person to person and may well be exaggerated by the time they reach the ears of management. Employers should bear in mind that they need to investigate any concerns before they act. It may be appropriate in some cases to suspend an employee whilst they conduct an investigation but employers should always investigate matters thoroughly before dishing out sanctions.
  • Let’s get it over by Christmas: The lead up to Christmas in workplaces is often remembered for the to-do list that precedes it. There is a temptation to deal with disciplinary or performance issues ahead of the festive period. Whilst that may be desirable all round, rushing through a dismissal at the expense of a proper investigation and/or a fair procedure could be costly in the long run.
  • Timing is key: The one caveat to the above is to remember that employees only qualify for unfair dismissal once they have been employed for two years. Employers should be mindful of this when considering how they deal with misconduct or poor performance. For example, someone on a probationary period who misbehaves at the Christmas party may just not be the right fit for the business. That being said, employees without two years’ service still have protection from discrimination and whistleblowing detriments and employers should always explain why they are making their decisions and ensure that they have a lawful reason for termination.

If employers have well-drafted policies and act promptly and proportionately, there is no need to cancel the Christmas party. However, knee-jerk reactions may result in an expensive list of resolutions in the New Year.

Rolleen McDonnell is a solicitor at leading employment law firm BDBF