‘Tis the Season to be Merry’ – Or is it?

Once again we are at that time of the year when thoughts turn to Christmas parties. For many this is an opportunity to socialise with friends and colleagues, and for employers to thank their staff and encourage employee integration.  

Once again we are at that time of the year when thoughts turn to Christmas parties. For many this is an opportunity to socialise with friends and colleagues, christmas-pictureand
for employers to thank their staff and encourage employee integration.

But, it can also be a minefield of legal and cultural issues that can impact not only on an individual but the organisation as a whole.

Christmas parties are typically based around food and drink, whether at a private party or at a venue that is shared with other organisations, or maybe the festivities take place within the workplace.

People often ask what the implications are of employees getting drunk at such an event or behaving in a way that would be deemed unacceptable/ inappropriate. Who is liable? Is it the employer – for organising the event, which potentially has a free bar – or the employee who has availed themselves of that hospitality?

This is where having clear policies around behaviour and conduct is essential. All employees should be made aware and fully understand what is considered acceptable and what could trigger disciplinary action. However, I expect few organisational policies explicitly refer to behaviour away from the work environment or at social events, and focus instead on the conduct rather than how, where, or when it occurs.

Whether the event is held on site or off, during working hours or outside of them, it is likely that it would be classed as ‘within the course of employment’. This is not always clear cut but the question is whether the employee was acting in a personal capacity, or in the course of their employment. An employer organised event that employees are invited to attend, is directly linked to their employment and is therefore almost certainly going to be considered as ‘within the course of employment’.

With this being the case, the behaviour would be considered as having been committed at work and employers would be quite legitimate in taking disciplinary action, if appropriate, in line with established policy.

An employee’s defence that they were in some way encouraged to drink excessively by virtue of the free bar, and their behaviour condoned by the employer, is unlikely to hold much water. Whilst individual circumstances must be considered, misconduct is misconduct.

The other point of course is that if the behaviour has been carried out ‘within the course of employment’ the employer may well be held vicariously liable for the conduct of their employees. This means that third parties could take action against the employer where they have been affected by the employee’s behaviour. This could include harassment, discriminatory acts, violence, criminal damage etc.

Organisations invest considerably in developing their brand to set them apart from the opposition to attract and retain high calibre employees and develop client loyalty.

Whilst holding Christmas events can aid employee engagement and embed organisational culture, organisations need to ensure that the right ethos is being endorsed.

Do you really want a culture where it may be thought okay to get drunk at an event and behave in such a way that it damages employee relationships and potentially brings the organisation into disrepute?

Over and above reputational damage, there are potentially equality and diversity issues as well as cultural ones. If there is a focus on drinking, how does this impact on an employee whose religious belief is at odds with the serving and partaking of alcohol? If the event is held in the evening, does this limit parents/carers – probably more likely to be female – from attending due to those responsibilities? What about general health and obesity issues and the link to diet and alcohol? Is thought given to how people travel home to ensure that employees don’t drive thinking that they are capable of doing so and under the legal limit?

As an organisation what message and impression do you want to give to both your employees and the wider public?

Get your culture right, with employees who embrace your values, vision and promote your brand, and it is unlikely that festive activities will give rise to problems. The wrong culture however may be a recipe for disaster.

About Cathryn Foreman

Cathryn Foreman, HR Consultant at Cardiff and London based law firm, Capital Law

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