Diversity and inclusion

Does your organisation pride itself on having a diverse workforce? If so, it is highly likely that you have different religions and cultural backgrounds, a mix of sexes and sexual orientations, and disabilities included in your workplace. Our recommendations include the following:

• Invite employees who are of all faiths and include them to the extent that they are comfortable and want to participate.
• Plan for special dietary requirements and for individuals who do not drink in advance.
• Consider challenges posed by mental health conditions. Choosing the right venue and considering adjustments can improve inclusion and participation. A team trip to carry out an escape room challenge may be problematic for those with claustrophobia. An open dialogue with the individual about, for example, leaving the door unlocked or maybe even ajar may help alleviate their concerns so the group can participate together.
• Invite individuals with caring responsibilities and non-working days, but avoid a rule or even an expectation that everyone will be at the Christmas party. Explore whether impacted individuals might like to swap non-working days, or otherwise discuss how you could facilitate their attendance.
• Be aware that some individuals may not want to participate in secret Santas, or may be offended by/unable to engage with "less conservative", or alcoholic gifts. Be aware that secret Santa gifts may be used by an employee in a discrimination complaint to make arguments around culture. In particular, it may be said that there is a level of harassment, or discriminatory "banter", evidenced by the gifts, which is accepted as a norm.
• Be mindful of ways of demonstrating how proud you are of the team, other than a free bar, which might increase the risk of allegations of harassment, discrimination, assault or other unwanted conduct. Plying employees with too much alcohol also undermine the organisation's rationale for a misconduct dismissal where things do not go as planned.
• Carefully consider any invitations from third parties (see last month's newsletter for a recap on third party harassment). Be aware that an employer can be vicariously liable in situations where the individual acting inappropriately is a visiting expert (see Shelbourne v. Cancer Research UK [2019] EWHC 842 (QB)). Be aware that, by next year's party, there may be stronger protections in respect of third party harassment. 

Criminal conduct

Hopefully, not something you will have to think about but, just in case…

• Have a zero tolerance to drug abuse and handle issues arising from excessive drinking promptly and consistently. Don't try to commence any investigation or suspend anyone the same night. Wait until everyone is sober.
• Try to get ahead of issues before they are escalated and police are called. However, if police are called, be open. Try to limit the impact on the environment for everyone else (for example, speaking in a private location away from the celebration).
• Consider travel arrangements (coaches, hotels, planned taxis or trains) when first planning events to help reduce the risk of driving under the influence.

The aftermath

Are employees having a duvet day, or a busy day posting on social media:

• Set expectations about absenteeism through positive communication in advance and be consistent. If you have been relaxed about attendance or working from home in previous years, employees will expect the same in the current year.
• Don’t stop attendees taking photographs or filming the night's events. Instead, act promptly if social media posts are brought to the organisation's attention which might be harmful to its reputation or have a personal impact on the individuals featured (including infringing their privacy).

Liability

Don't assume that, where employees act inappropriately, it will be their problem alone. Our key tips in respect of potential liability are:

• Have a plan for the whole night, from the time employees arrive to the point they return to their hotel, and think about what could happen during the car journey (Livesey v. Parker Merchanting UKEAT/0755/03). Inappropriate acts committed by employees in these periods are likely to be sufficiently connected to their employment to make their employer liable. In the case of Bellman v. Northampton Recruitment Ltd [2018] EWCA Civ 2214, the employer was held liable for an assault carried out by a managing director on another employee during an unscheduled drinking session after a Christmas party. The question of whether the act is conducted "in the course of employment" is viewed broadly by the courts.
• Ensure that messaging about the night is positive. Try to ensure that employees have a good time and that they share the fact that they had such a positive experience with their colleagues. Tackle any rumour or gossip. Even where a "victim" appears to be the "author of their own misfortune, by acting so publicly, so foolishly and so irresponsibly", the employer may not be able to successfully argue contributory fault or get a substantial reduction of compensation on that basis in any constructive dismissal claim (Nixon v. Ross Coates Solicitors and another UKEAT/0108/10). The Employment Tribunal is required to consider if the conduct in question actually contributed to the dismissal and not just adopt a broad-brush approach on a just and equitable basis.

Conclusion

Convey your messaging around the Christmas party sensitively and positively. Christmas parties can do wonders for team morale and cohesiveness, particularly if approached with a degree of flexibility. Plan for the whole night in advance, but maintain an open dialogue with all staff and eliminate pressure to attend. Avoid targeted conversations based on perceived characteristics (which may get you into grievance or discrimination complaint territory). Have a relaxed approach to secret Santa and perhaps suggest a few appropriate gifts.

Think about how much free alcohol you provide and ensure that particular diets are planned and catered for. Tackle any illegal conduct promptly and consistently. Have a few managers on hand, just in case.

If issues arise from excessive drinking, these could be dealt with consistently. If you are tightening up your policy this year, communicate that in advance.

Remind employees that the same standards are expected of them when they are attending a work social function, be that in the pub or at the Christmas party, as when they are in the office. It may be that your code of conduct already covers this, and you can use the Christmas party as a good prompt for a reminder.

Mix up the conversation in the office for the few days after the Christmas party and ensure that everyone is engaged. Employees will soon want to know what's next in the social calendar.