As the festive season comes around once again, it is worth remembering the potential for fallout from the various Christmas-related activities that happen in most workplaces every December. At the risk of inciting cries of “Bah Humbug!”, we offer some food for thought as you plan your festive fun.
Nothing ruins Christmas like an employment tribunal that arises out of an inappropriate Secret Santa gift.
Generally these gifts (even if they do involve an element of good natured joshing) are well received, but it is not unusual for individuals to buy a present that is hilarious to onlookers but potentially offensive to the recipient.
Unlawful harassment occurs where a person engages in unwanted conduct towards an individual which is related to a protected characteristic (such as age, disability, gender, race, religion or sexual orientation), which has the purpose or effect of either violating the individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.
This is a very wide definition and, importantly, it is the perception of the individual that matters, rather than the intention of the perpetrator. It is therefore quite possible that the giving of an inappropriate Secret Santa gift could lead to a harassment claim. In most cases, if the harassment happens in the course of employment, the employer will be liable for the actions of its employees.
Therefore, we would recommend, at the very least, that employers circulate guidelines to employees regarding gifts, making it clear that they should be respectful and inoffensive. You may also wish to consider drafting a formal policy to provide guidance to employees and warn of the potential implications for them and for the business if offensive gifts are given (inadvertently or otherwise) and link this to your dignity at work policy.
The office party
Christmas parties are the highlight of the office social calendar and give staff the chance to unwind with their colleagues after a hard year.
Employers will already be mindful of the most obvious risks which typically arise from these (often alcohol-fuelled) events. Claims for harassment around inappropriate comments and/or sexual harassment are a well-publicised risk and can often lead to harassment claims against both the individual and the employer, the latter normally being held liable for the unlawful actions of its employees, unless it can demonstrate that it took all reasonable steps to prevent such things from occurring. This is a difficult defence to establish. Actions to minimise misbehaviour and limit risk could include setting limits on the amount of alcohol that will be provided and communicating with employees in advance to confirm the standards of behaviour expected and the fact that the disciplinary process will be followed if necessary, with appropriate references to your dignity at work policy.
However, there are other risks around office parties that are perhaps less obvious. The traditional boozy evening is not always what employees want.
Those planning and allocating budgets for office parties should be mindful of the fact that many employees may prefer not to drink alcohol, or may even be unable to do so for reasons related to a protected characteristic, such as religion, belief, or disability. Failing to take this into account could leave businesses open to allegations of indirect discrimination.
Therefore, ensuring that catering/party budgets and arrangements create an element of choice for the individual, wherever possible, is to be recommended. If practical to do so, getting input from your employees as to their preferences for celebrations, can help to mitigate problems, even if it isn’t always possible to keep everyone happy.
Managing the morning after
In the event that festivities do get out of hand, businesses need to safeguard against the consequences of excessive partying.
Employers should decide beforehand whether they will allow employees to come in late the day after the office party, and make it clear where they stand on lateness and absenteeism.
Sharing snaps on social media can be a great way to engender team-building, but it also creates a breeding ground for causing offence, breaching privacy and causing damage to the reputation of your business if the wrong images make it into the public domain. Ensuring you have a well-drafted social media policy in place, and reminding employees of its contents in advance of Christmas parties to ensure nothing inappropriate is posted, will help to mitigate the risks, even if it cannot remove them altogether.
Communication is key
It is very easy to view advice about reducing risks at this time of year as ‘killing the fun’. However, that need not be the case. The key is to apply common sense, find ways to communicate messages to your employees in positive language and engage with them over their preferences for Christmas events. Communications can remind employees that festive activities are a celebration for all, but that employees who do not respect and consider others can spoil the party for everyone.