Chris Randall

The office Christmas party is a common way to boost morale by rewarding staff and giving everyone a chance to bond, but when things do not go to plan, the consequences can be much worse than a hangover.

A work related event?

Despite its festive atmosphere, an office Christmas party is legally an extension of the office environment even if it is held away from the office and beyond working hours.

Employers should be aware that they remain liable for acts of harassment, discrimination, assault or other unwanted conduct carried out by their employees.

Who to invite?

Employers should not make the staff attendance at such events compulsory. This could potentially discriminate against those who are unable to attend, for example, on the grounds of childcare.

Employers should guard against pressurising non-Christian faiths to attend in case it makes them feel uncomfortable.

All staff should be invited to the party so that it is inclusive. The invitation should extend to those who are absent from work on family reasons, and consideration should be given to inviting employees who are absent on sick leave.

The venue

Consider choosing a venue that is accessible to all staff including those who may have a disability. Similarly, make sure that any entertainment provided will not cause offence.

In certain circumstances, an employer can be responsible for acts of third parties. This was demonstrated in the Burton and Rhule v De Vere hotels case, primarily a race discrimination case, where the hotel was found to be liable for the harassment of two waitresses by the comedian Bernard Manning’s racist jokes, who was the speaker at a dinner.

Discrimination

Employers should continue to guard against acts of discrimination.

In Nixon v Ross Coates Solicitors, Nixon, the claimant, was seen leaving the office Christmas party, where “a good deal was drunk by everybody”, kissing another employee and going to a hotel room with him.

She told her employer that she was pregnant. The firm’s HR manager began gossiping about the paternity of the baby.

The claimant was upset and embarrassed by the rumours and requested to work away from the HR manager at the firm’s other office. She also raised a formal grievance. Her request to work from the other office was denied and she refused to go back to work in the same office as the HR manager. She resigned in March.

The Employment Appeal Tribunal found the HR manager’s actions amounted to harassment on the grounds of pregnancy. The gossip was connected to the claimant’s pregnancy; the conduct was unwanted, and it caused the claimant embarrassment and upset.

Do not make promises you cannot keep

It is best to avoid discussions regarding career development and pay at Christmas Parties, for rear of misinterpretation.

In the case of Judge v Crown Leisure Limited, during a Christmas party, the employee claimed he was promised that he would be put in the same pay scale as a different employee who had transferred within a period of two years.

His manager disputed this claim. When this pay increase did not materialise, he resigned and claimed unfair constructive dismissal. The Employment Appeal Tribunal held his claim should not succeed because the conversation between him and his manager took place during the “convivial spirit of the evening” and was not intended to be binding.

This is a case that could have been decided differently if there had been more certainty on the agreement reached.

Social media

Remind staff of your social media policy. Staff need to be aware of the consequences of posting pictures online that may bring the business into disrepute, or infringe the rights to privacy of colleagues.

Employers should consider the popularity of social media platforms such as Twitter, Facebook and Instagram. It is important that employees understand the possible consequences of breaching the policy.

How to reduce the risk

• Make the party inclusive and invite all staff, whether they are absent or not.
• Select entertainment that will not be viewed as offensive.
• Remind staff of your policies. It is worth sending an email round on the day of the party just so staff realise the business’s rules apply outside the office too.
• Have a dress code.
• Avoid an unlimited free bar. Consider an allowance of drinks tokens to try and regulate the consumption of alcohol.
• Consider how staff will get home. Ideally arrange transport such as taxis or buses, or at least make sure everyone can get home after.
• Avoid discussions at the party regarding career development or anything that could be misinterpreted.
• Make sure your employer’s liability insurance covers your staff’s welfare at the party.

A recent tribunal case against supermarket giant Asda has shone the spotlight on the importance and consequences of establishing correct rates of pay for men and women.

The Asda Case

In the case of Brierely and others –v- Asda Stores Limited 2406372/2008, the Manchester Employment Tribunal held that over 7,000 current and former Asda employees can compare themselves to more highly paid male colleagues, who work in the retailer’s distribution centre.

This allows them to bring a series of test cases that could lead to compensation of more than £100 million.

Employment Judge Ryan ruled after a two week preliminary hearing that the predominantly female store workforce can compare themselves to male colleagues.

He explained: “The claimants lodged their claims in the employment tribunal alleging that the work they do is of equal value to their comparators and yet the comparators are being paid substantially more than they are.

“The claimants argue that this is an archetypal claim of equal pay based on the fact that historically the work done by the women was always perceived as women’s work and therefore thought to be worth less than the work in the distribution depots which was traditionally perceived as men’s work.

“They submit that the historical discrimination has never been corrected. Asda deny this and contend that there has been no discrimination and that accordingly the claims should fail on the merits.”

Asda unsuccessfully appealed this decision to the Employment Appeal Tribunal UKEAT/0011/17/DM.

Justice Kerr handed down his judgment on August 31, 2017 and concluded that the tribunal had been correct in their initial ruling last year. He dismissed

Asda’s appeal and concluded that: “I find no lack of rationality or perversity in the judge’s reasoning… the judge’s overall conclusion that the terms were common in the statutory sense is not impeachable,”

What happens next?

This is thought to be the largest equal pay claim ever brought in the private sector.

The tribunal has yet to consider whether the jobs are of equal value in terms of their demands and if some jobs are, only then will the tribunal move on to consider the reasons for the differentials.

This comes at a time when gender pay reporting is a hot topic. Employers should make sure they pay men and women equally in order to avoid such claims.