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It’s the most wonderful time for a beer?

Dec 13, 2022

With Christmas fast approaching and with COVID-19 restrictions no longer in place, many employers are going to be seeing the return of the Christmas party. For too long now, we haven’t been able to meet together and gather our colleagues from across sites and locations to join together in a bit of Christmas festivity!

Whilst a Christmas party is a great chance for employers to reward hard work from throughout the year, to give employees the opportunity to “let their hair down” and have a good time, unfortunately we have too many clients who, over the years, have seen complaints, grievances and claims come out of what was meant to be fun. This is even more important in the property sector, particularly if you have people who had “one too many” back on site the morning after.

So, what can do to get it right this year?

The Party

A large number of employers do not realise that they can be “vicariously liable” for the actions of their employees. In Bellman v Northampton Recruitment Limited, an employer was held to be liable when an employee was assaulted by the managing director during an “after-party”. Likewise in the case of Chief Constable of Lincolnshire Police v Stubbs an employer was liable for sexual harassment committed by an employee at a pub outside of working hours. An employee’s behaviour and the employer’s liability for that behaviour, undoubtedly, extends to a Christmas party. This is even if you didn’t arrange it or put the money behind the bar for the beers.

In light of this, our top tips for employers to help them enjoy the festive season with a little less risk are:

– Make sure employees have had clear guidance on the standard of behaviour expected from them and consequences for failing to adhere to this. This doesn’t have to be anything too much but it does need to be clear and not debatable.

– Ensure employees will be able to get home. This could include arranging transport or ensuring public transport is accessible to them.

– Try to avoid allowing people to have too much. That is easily said. However, limits on bar tabs or drinks vouchers, rather than open unending flowing alcohol can mean that people do not lose control.

– Ensure that Christmas parties are inclusive for all staff and cater for all. Too often, we find that complaints come from those not invited or who are not included in the celebrations. You can do simple things like having a variety of food options and non-alcoholic drinks available. Remember, not all employees will celebrate Christmas but they should not be left out of the party!

– Ensure it is clear that if people decide to continue to party after the official work party comes to an end that is their own responsibility. This can often be difficult to convey but a simple message can often save headaches later. This will not offer complete protection against potential issues arising from the after party but can, at least, give you an argument that it is not your liability.

– .Do not bring work to the party. Conversations about performance or salary at such events could be problematic as employer’s can be bound by anything said and agreed, even if they were under the influence of alcohol at the time.

The Aftermath

Employers also need to consider what happens the morning after!

Sometimes it almost feels inevitable that a complaint will come out of the party. Sadly, often, these are complaints of harassment where people have said unwanted things or gone beyond what they would normally do, in a normal work environment. Having a clear process and grievance procedure for employees to air their concerns can avoid matters escalating. Grievances should always be managed carefully and pragmatically.

If you are holding the party in the week, many employers will find an increased level of absenteeism the day after a Christmas party, especially if it goes on late and alcohol has been freely available. Employers should communicate their expectations to employees in advanced of the party as well as the consequences for any absences. If there is critical work to do, encourage the employees to get it done before they head off to the party!

Where employees are working on building sites or other worksites and are working heavy machinery or in hazardous places consideration also needs to be given from a health and safety perspective. If an employee has been drinking until the early hours and feels okay in the morning to work, it does not necessarily mean the alcohol has left their system. There can obviously still be residual effects. Again, employers need to consider the approach to take, communicate to employees’ expectations in advance of any work party and advise them of the consequences if they were to come to work in an unfit condition due to the party. Often, the potential for an employer undertaking random testing for alcohol and drugs can be enough to dissuade employees from arriving the next day in a state that they cannot work.

Hopefully this year will be filled with good cheer, celebrations and not too may post-party issues. We hope all involved have a good and undramatic celebration of this year’s overdue festivities. If it does go wrong, however, we have heard all of the stories before, and would be more than happy to share our experiences again to solve any problems that arise.

For further information, or to discuss the issues raised by this article, please contact Herrington Carmichael’s Employment group on 0118 977 4045 or employment@herrington-carmichael.com

This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

Alistair McArthur

Alistair McArthur

Partner, Head of Employment Law

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