As published on Legal Island, November 22 2021.
Hangovers happen after Christmas parties – and sometimes employers have to deal with them too; in particular, it’s not uncommon for an employer to have to take disciplinary action following an office social function because a member of staff crossed the line between acceptable and unacceptable behaviour.
In this context, it’s relevant to note that it is now well-established that the Christmas party is effectively an extension of the workplace, meaning that both the usual obligations apply. Specifically, an employee who misbehaves at the Christmas party is susceptible to disciplinary action. Most parties proceed without incident but it’s occasionally necessary to take steps where conduct goes too far.
Dealing with this doesn’t usually cause major problems for employers – even if it’s necessary to take disciplinary action after a Christmas party, it’s not normally particularly complex (and not particularly different to any other kind of disciplinary situation).
However, the advent of Covid-19 means that Christmas parties (and other office social functions) carry quite different challenges for employers in 2021. There are two issues in particular that employers need to think about.
– First of all, it’s debateable whether employers should be having in-person Christmas parties in the first place. It’s no great exaggeration to say that as far as the reopening of society is concerned, we are currently in a phase of “one step forward two steps back”.
Practical difficulties in the hospitality industry are regularly highlighted in the media. It’s by no means impossible that the current – and more liberal – regime will be restricted in the run-up to Christmas. Even if the status quo remains, there are definitely dilemmas for employers when planning Christmas parties.
The single most important precaution that an employer can take is to make sure they stick as closely as possible to public health guidance. Among other things, this will of necessity involve satisfying themselves that the venue for an in-person Christmas party complies in full with all of the rules currently in place.
The employer’s obligation to provide a safe place of work extends equally to the party venue – as referred to above, it is now, and has been for some years, accepted that a social function connected with the business is no different to a function taking place on the premises. An employer must, in other words, comply in full with its obligation to provide a safe place of work.
If this cannot be guaranteed, there is only one sensible solution: cancel the in-person Christmas party. Venue aside, employers should also ensure, if the party goes ahead, that staff continue to follow the public health rules, especially once drink is taken. There is no harm at all – and, in fact, it is probably essential – to brief staff in advance and, among other things, remind them to follow the rules at all times.
– The second scenario employers need to be mindful of is unofficial Christmas parties. If an employer decides not to host an in-person “official” function, it’s entirely possible that members of staff will decide to meet up themselves to celebrate the festive season.
A critical question for employers to consider is whether events of this kind could actually be deemed to be connected with the workplace. If so, employers need to think carefully – and among other things, consider whether they are at any risk if an unofficial Christmas party goes ahead, but the employer has taken no steps to ensure the health and safety of those attending.
This can be a difficult area in practice. As already referred to, the courts and tribunals will be prepared to consider an off-site function as having a connection with the office in certain circumstances.
Employers should ask themselves four questions, in particular:-
(a) Has the event been organised during office hours?
(b) Is the event being publicised within the office by the social committee (or another committee associated with the office)?
(c) Is the company paying for the event?
(d) In the round, could the event reasonably be deemed to be “official”?
If the answer to one, or more, of these questions is “yes”, then it is prudent for an employer to regard the party as having some form of connection with the office.
In those circumstances, an employer should take whatever steps it deems necessary to safeguard its position. For example, if the “official” Christmas party has been cancelled, the employer could consider withdrawing any support for the “unofficial” Christmas party (or parties).
None of this is particularly pleasant, and it certainly goes against any semblance of Christmas spirit. That said, we are living in unusual times and it is not as if an employer is taking any of these steps from an absence of goodwill. Rather, they are a recognition of the fact that normal principles no longer apply – we are all living in a Covid world.