Earlier this week, Lloyd's of London hit the headlines after emailing its 46,000 members of staff reminding them to behave during the Christmas party season. 

As the year draws to a close and festive cheer begins to spread,  take a few minutes to come on a whistle-stop sleigh ride with us and look at some ways to mitigate risk and manage issues arising out of the potentially risky Christmas party.

Santa owes his elves a duty of care and may be vicariously liable for any naughty behaviour

Whether the party or social event takes place in the office or not, it can be considered to be an extension of the workplace and employers can be liable for the events that unfold. For example, work nights out to the local pub will often still be considered to be the workplace on the basis that the events would not have been attended but for the work connection.

Last year the Court of Appeal went as far as finding that an employer was vicariously liable for the assault by one employee on another at an after party. The Court of Appeal decided that because the managing director was lecturing the group in his role as a superior when he punched a subordinate at the after party, and since the act should be seen against the background of the earlier party, there was sufficient connection between his wrongful act and the employing company.

As a result of this, it is worth employers sending a gentle reminder to employees of the standards of behaviour expected of them at Christmas parties. 

A good way of doing this is referring employees to the company’s disciplinary policy and reminding them that inappropriate behaviour and unwanted conduct may lead to disciplinary action being taken in the same way it would as if it took place during work hours. In the reminder, employers may also wish to make reference to —

  • Alcohol consumption ('tis the season to be merry but not too merry)
  • Social media (ignore your Dutch courage and do not post THAT picture)
  • The company's commitment to preventing harassment and discrimination (channelling Buddy the elf by making your feelings abundantly clear this festive season is not always a good idea)

It is important for employers to have a policy covering harassment and discrimination as under the Equality Act 2010 they are normally liable for acts of discrimination, harassment and victimisation carried out by employees during the course of employment. 

It can be a defence for employers to show that all reasonable steps were taken by them to prevent such acts. Having a policy in place can help with that. 

Before belting out Shakin’ Steven’s Merry Christmas Everyone, don’t forget to think about everyone

It is important to take everyone’s needs into consideration. 

Celebrations should be non-discriminatory. Accordingly, employers may want to take into consideration the timing of the event and the food on the table. 

For example, employers may want to make provision for vegans who may have a protected philosophical belief. Employers may also want to take into consideration other religious holiday dates which fall in December such as Hanukkah. Also, remember to invite people who may work for the company but might be on leave, i.e. maternity and paternity leave. Everyone likes to be invited to the party!

The morning after the party night: all is calm, all is bright

...because half the workforce did not turn up for work the next day?

Employers may wish to remind employees that they are expected to attend work on time the next day unless they have booked a day off in the usual way.

Where employees fail to turn up to work and don't have a valid reason, the company may be able to refuse or deduct the appropriate amount of wages (a potentially acceptable Scrooge movement depending on what's in the employment contract).

If non-attendance due to hangovers is a problem for an employer, they may wish to make it clear to staff in advance of the party that disciplinary action will be taken against any employee who turns up late the day after and there is reason to believe that the non-attendance/lateness is due to the over-consumption of alcohol. 

However, employers still need to proceed with some caution as there may be genuine absences and the usual investigation requirements apply.

Brace your elves for dealing with the next-day naughty list

An employer is responsible for the actions of employees towards each other. In the event that an incident has occurred and a complaint has been made, employers should aim to deal with it fairly and swiftly. 

They should not automatically dismiss a complaint as a 'Christmas frolic' or  ‘just banter’. Investigations should be conducted professionally and thoroughly — failure to do so could result in an additional complaint against an employer for discrimination.

We wish you a very Merry Christmas and a happy (claim-free) New Year!