Christmas period: Christmas party checklist

Naomi Flynn of Osborne Clarke begins a series of articles on Christmas period issues with a Christmas party checklist, which includes measures that employers should take to avoid costly employment claims. Employers can reduce the likelihood of discrimination claims by careful planning and dealing with any inappropriate behaviour swiftly.

1. Keep employees in line.

Where employees are going to be given the chance to let their hair down and there will be free-flowing alcohol, it is important that they are made aware of the standards of behaviour expected of them. Although it may take place outside working hours and at an external location the Christmas party is a work event and employers are vicariously liable for the acts of employees unless they can prove that they have taken reasonable steps to prevent those acts. Steps include:

• ensuring that appropriate policies, procedures and training are in place to help prevent harassment, discrimination and bullying of anyone at the party by fellow employees or partners, or staff servicing the event;
• making all employees aware that anti-harassment policies apply to the Christmas party, and communicating these policies to all employees beforehand;
• providing clear examples of the type of behaviour that is unacceptable (for example fighting, excessive alcohol consumption and use of illegal drugs) and making clear that offending employees will be dealt with under the disciplinary procedure and that cases of gross misconduct may lead to summary dismissal; and
• making sure that there is a plentiful supply of water and (possibly free of charge) other non-alcoholic drinks at the party, giving employees the opportunity to curb excessive drinking and ensuring that those employees whose religion forbids the consumption of alcohol are not discriminated against.

2. Deal with bad behaviour.

During the party be alert to any potential harassment, discrimination and bullying that may take place. It is advisable to ensure beforehand that there are sufficient appropriate employees who have agreed to remain sober and effectively supervise the event, and who will nip in the bud any behaviour that may potentially be offensive. Employers should also be aware of the potential liability for third-party harassment, which came into effect on 6 April 2008 (see previous topic of the week article Harassment: changes to the Sex Discrimination Act for more details). If a grievance is raised during or following the party, the complainant must be given the opportunity to have his or her grievance dealt with informally or formally, as preferred. To avoid claims of discrimination and/or breach of the implied term of trust and confidence by the alleged victim, the employer must act promptly and treat the complaint seriously pending further investigation, and deal with it in accordance with the appropriate policies and procedures.

It is also necessary to make sure that all employees comply with the smoking ban. It may be tempting for them to "light up" on the basis that it is a private work function at an external venue.

It is a good idea to remove mistletoe from the party. Although it seems like good fun at the time, having mistletoe at the party may increase the risk of sexual harassment claims.

3. Supervise secret Santa.

If employees are participating in giving "secret Santa" gifts make clear prior to the party (or whenever the gifts are to be given) that they must be inoffensive. If inappropriate gifts are given the recipient of the gift should be spoken to, to check that he or she is not offended, and advised of the right to raise a formal grievance. In any event an employer in this situation should consider whether or not formal disciplinary action should be taken against the employee who has given the gift.

4. Do not discriminate where invitations are extended to partners.

If you intend to invite employees' partners to the Christmas party make clear that both opposite sex and same-sex partners are invited. Failure to do so could result in claims for discrimination on the grounds of sex and sexual orientation.

5. Consider the timing of the party.

Make sure that the party is timed to ensure that it is open to all employees, regardless of their religion or family responsibilities. Some employees may be disadvantaged by the party being held at certain times or on particular days. For example, a party on a Friday evening could result in Jewish employees being excluded because their Sabbath begins on Friday night. Employees with childcare responsibilities may find it more difficult to attend a party in the evening, particularly one where the main focus is the period immediately after work. It may be advisable to have a lunchtime or afternoon party instead.

6. Check the venue.

Ensure that the venue is appropriate. It must be accessible to disabled employees and suitable for all employees. For example, if a party is held at a lap dancing bar or continues there after the main event, the employer risks potential sex discrimination claims. Holding the party at a nightclub may potentially discriminate against younger employees who are not old enough to gain entry, or older employees who are made to feel uncomfortable and excluded from such a venue.

Employers also have a general duty under health and safety legislation to ensure, as far as is reasonably practicable, the health and safety of all their employees. The Christmas party is a work event and employers should therefore ensure that the venue is acceptable from a health and safety perspective. It may be appropriate to carry out a risk assessment prior to the party and take steps to remedy any particular identified hazards, or choose a different venue. Employers should also check that their insurance policy covers events held on their own premises, particularly where third parties are invited.

7. Take care with the dress code.

There is no reason why a dress code cannot be specified. However, care must be taken to ensure that it does not discriminate against employees of a particular religion or belief.

8. Cater for dietary requirements.

It is important to cater for all guests. Check dietary requirements prior to the party to ensure that there is provision for those unable to consume certain foods such as beef or pork, due to their religious beliefs.

9. Prevent drink driving and manage the journey home.

Remember you may be liable if an employee is involved in a drink-driving related accident after your work Christmas party. Employers have a duty of care to ensure the safety of employees and non-employees, including passengers and other road users, who may be affected by work-related activities. As the Christmas party is a work event, this duty extends to it.

To minimise the risk of employees drink driving, and to demonstrate that all reasonable steps have been taken to ensure the safety of all individuals at the event and any other third parties, including other road users, who may be affected by an employee's conduct:

• remind employees before the party to organise their journey home, for example by checking last train times;
• ensure that there are plenty of non-alcoholic drinks available;
• consider hiring mini-buses or coaches or arranging taxis, to take employees home;
• provide employees with the numbers of local licensed taxi firms prior to the party; and
• remind employees not to take lifts home from unlicensed mini-cabs or other unmarked cars, and encourage them to travel together.

10. Clarify the position on returning to work after the party.

Make clear before the party that all staff are expected to attend work the following day (if it is a normal working day) and that unauthorised absence will be treated as a disciplinary matter. Where an employee phones in sick, care must be taken to clarify his or her reason for non-attendance before disciplinary action is taken. If you would not normally dismiss an employee for a first unauthorised absence you should not do so simply because the non-attendance is linked to the Christmas party.

Where the party is held at lunchtime, make clear to employees whether or not they are expected to return to work. If employees have not been informed of what is expected of them, it will be difficult to take disciplinary action if they have, not unreasonably, assumed that a Christmas lunch with alcohol provided by the company is permission effectively to stop work for the day.

Employees who return and work under the influence of alcohol may make costly and (if they work with machinery) dangerous mistakes. Therefore, employees who are required to return to work after a lunchtime party should be reminded to control their alcohol consumption. Employees who work with dangerous machinery, or who drive as part of their job, should not be offered alcohol at the party if they are required to return to work after it. The easiest course of action may simply be not to require employees to return to work until the following day.

Next week's article will be a case study on issues concerning the Christmas period and will be published on 8 December.

Naomi Flynn is a senior solicitor at Osborne Clarke (naomi.flynn@osborneclarke.com).

Further information on Osborne Clarke can be accessed at www.osborneclarke.com.