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 1 – Harassment
One of the most common complaints arising from out of hours work social events involving alcohol is harassment. Many people think harassment just covers sexual harassment but it is wider than that. Harassment covers ant kind of behaviour that is related to certain protected characteristics – for example, sexual orientation or race.
Harassment is behaviour that is intimidating, hostile, offensive, degrading or humiliating. The most common response employees hear when an allegation of harassment is made is “it was only a joke!” That is not a defence – the behaviour is measured by the impact it has on the complainant, not the intention of the person who said or did something. It can also cover behaviour that has this effect on a party who is not the intended recipient.
Employers can be vicariously liable for acts that qualify as harassment at office parties. However, there are things that they can do to minimise their liability:
- Clear policies: clear policies against harassment in a handbook will be helpful for an employer defending a harassment claim but the policies must be widely understood and enforced to carry real weight.
- Training: employers should also ensure that employees have sufficient training on the policies in place and understand what harassment is and how to avoid it in the workplace.
However, even with the best policies and training, no employer can manage its employees all of the time. If incidents that could be harassment do occur, employers need to remain vigilant. Often, those on the receiving end of this kind of behaviour feel too intimidated to speak out or fear repercussions. Those in management should be mindful of this. It is also unlawful to subject someone who has made a complaint of harassment to less favourable treatment as a result.
Employers should investigate complaints seriously and take appropriate action. The test as to whether harassment has taken place is subjective so managers should bear this in mind (although a hypersensitive complaint will not be harassment). Failing to do so could not only create exposure for this instance itself but could also create a damaging office culture and result in worse incidents in the future. The ghost of Christmas parties past could create a potentially embarrassing backdrop to an Employment Tribunal claim.