Providing or hosting work Christmas parties represents a good way to increase staff morale, make employees feel appreciated, and to celebrate the end of the calendar year. Christmas parties are often a flagship event of the year and, more often than not, they occur without issue. However, it is prudent to review a range of grievances and disciplinary challenges flowing from said parties which can make the season of good cheer a challenge.
But it was outside of work: Not my problem?
Although Christmas parties are often off site, in a bar or restaurant, England and Wales case law has established that there is usually sufficient connection between the Christmas party and the workplace to mean that misbehaviour at the Christmas party should be treated as misbehaviour in the workplace. This means that employers still have a responsibility to their employees. This can also extend to so-called ‘after-parties’.
Common problems arising from the Christmas Party
The following are frequently reported to the RMIF legal advice line:-
- Absence/lateness: Employees are often late or absent the following day. Employers will have a choice as to whether they are festively lenient, or treat any such problems as they usually would, by way of formal or informal disciplinary.
- Misconduct issues: There is nothing like free alcohol to encourage petty niggles and disagreements between employees to grow into full-blown hostility and misconduct issues.
- Harassment: Remember that harassment has a very wide legal definition and can involve verbal or non-verbal or physical conduct. Conduct can also constitute harassment if it has the effect of violating another person’s dignity and therefore an intention to harass is not necessary. One employee’s ‘harmless banter’ is another employee’s ticket to the Tribunal.
- Issues with religious belief: Don’t forget that not all of your employees will necessarily celebrate Christmas, and employers need to be careful to ensure that those of different religious persuasions are not treated less favourably, or comments made, if they choose not to partake in what is, essentially, a traditional Christian festival.
Absence the next day
The most common issue we advise on by far is absence the day following the Christmas party. If an employee fails to attend for work the day after the Christmas party, employers are entitled to treat the unauthorised absence as a disciplinary matter. Warn employees beforehand that if they are absent from work without good reason, this will be treated as a disciplinary issue in much the same way as other types of unauthorised absence.
It is more likely that an employee will phone in sick rather than simply failing to attend work. While an employer might suspect that an employee is malingering or hung-over, it is important to clarify the reason for the employee’s non-attendance before acting against them. Clearly, if an employer has evidence to suggest the employee is not genuinely sick, they may treat the absence as a disciplinary matter. However, unfortunately, mere suspicion based on circumstantial evidence is not enough.
Harassment
The most common claim to arise as a result of a Christmas party is often sexual harassment. The Equality Act 2010 defines harassment as “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual”. As those particularly hot on employment law will note, the law changed in October 2024 to impose an active and positive duty to prevent sexual harassment (see our previous article on this topic).
An employee can make a valid claim of sexual harassment where there has been unwanted conduct of a sexual nature, where the unwanted conduct relates to their gender, and where sexual advances have been rejected then the person is treated less favourably. A complaint can be raised by men as well as women and by witnesses as well as victims. As a reminder, the defence that a remark or action was ‘banter’ will rarely be a valid defence unless the individual was an active participant in the conduct.
It is important to be mindful that employers are liable for the discriminatory actions of their employees carried out ‘in the course of employment’, regardless of whether the employer knew or approved of the action. However, employers have a statutory defence if they can show that they have taken reasonably practicable steps to prevent the discrimination or harassment from occurring. Employers should therefore:
- Ensure that all employees have received training on equal opportunities and the types of behaviour that constitutes unlawful discrimination and harassment.
- Ensure that up-to-date equal opportunities and anti-harassment policies are in place, which clearly state that conduct at work-related events such as Christmas parties is covered, even if the event takes place out of office hours or off the premises.
- Ensure that the policies have been distributed to all employees and that they are made aware of and understand the issues covered by the policies.
- Send a statement to all employees in advance of the Christmas party, setting out the standards of behaviour and conduct expected from them, what types of behaviour are not acceptable and the consequences of inappropriate or unlawful conduct, which in most cases will be disciplinary action up to and including summary dismissal depending on the circumstances of the case. In the statement, remind employees that alcohol should be consumed in moderation and they should not drink and drive.
- Designate certain senior (sober) members of staff to monitor events on the night to ensure that things do not get out of hand. Senior members of staff should be setting an example to other employees and their behaviour should be monitored in much the same way as other more junior employees.
- Bear in mind their duty of care and consider limiting the number of free alcoholic drinks and take steps to send an employee home (preferably in a licensed taxi) if their conduct gets out of hand.
Religious Discrimination
The Equality Act 2010 outlaws certain discrimination, harassment and victimisation on grounds of protected characteristics. As this includes religion and belief, Christmas parties could discriminate against non-Christian staff if their religious festivals are not also celebrated.
A simple resolution therefore is for employers to be careful to take into account the different religions when planning the event such as considering whether:
- the venue is suitable and the date acceptable (the venue should also be easily accessible and not put disabled employees at a disadvantage);
- the chosen theme or entertainment are likely to cause offence to anyone;
- a choice of non-alcoholic drinks be provided; and
- the menu accommodates particular dietary requirements.
That said, we need to put this into context. Work Christmas parties are rarely about celebrating religion. Rather they are about improving staff morale and loyalty by way of thanking employees for all their hard work and efforts over the previous year. As such it is unlikely that an Employment Tribunal would find that the holding of a Christmas party in itself constitutes religious discrimination. There just needs to be moderation and some commonsense.
In Conclusion
We need to remember that 99% of Christmas parties will go on without a hitch, and where there are issues these are likely to be minor.
The key to a pain free Christmas party is clear communication in advance regarding what is and what is not expected is the most useful advice that can be given. Employers could, for example, set out in a memo or email, expected levels of behaviour and potential sanctions for non-compliance; not that this has to be done in a particularly miserly way! A gentle reminder included in details about the party will often suffice. Employees could also be reminded to re-read the sections of the handbook regarding equal opportunities and/or anti-harassment policies.
Christmas parties can be a morale boosting social event which many employees look forward to. Whilst there can be problems, the vast majority of them are enjoyable events. A little preparation can make sure yours is as well.
As always, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.
Motor Industry Legal Services (MILS Legal Ltd)
Motor Industry Legal Services (MILS) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.
