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Despite the financial gloom, many businesses are still holding a Christmas get together with their staff. It’s a chance to celebrate this year’s successes and to look forward to next year’s challenges.

So it may come as a surprise that December is a busy month for employment lawyers.

Earlier this month we dealt with the pre Christmas party dismissals specifically to avoid perceived ‘loose cannons’ mixing with important clients and we are already busy dealing with the aftermath of early Christmas parties.

The problem with work Christmas parties is that (after a few drinks) some employees focus a bit to much on the word ‘party’ and forget the word ‘work’ assuming that they are free from the normal rules of the workplace.

Bringing the company into disrepute wins the ‘Misconduct of the Month’ award in December and January. This is particularly the case where a party takes place outside of working hours and is not held on work premises.

Over the years there have been a number of tribunal cases, particularly discrimination cases, establishing the principle that as it is a work event, you, the employer, can be vicariously liable for the actions of your employees.

So Julie and I got to thinking about the kinds of problems EmployEase has been asked to deal with over the years: Here is a roundup of our all time Christmas party disasters:

The fights

A company held its Christmas party in the offices and hired a band for the evenings entertainment. Late on in the party, the band members took a break.  Two members of staff decided to have a bit of a play on the drum kit and proceeded to argue about who was going to play first. Before anyone else realised what was happening, one employee pushed the other who fell into the drum kit. That employee then picked up a cymbal and belted the first employee on the head with it. By the time they could be stopped the drum kit was badly damaged and another employee who had attempted to stop the altercation was bleeding profusely from his nose, having been hit by a flying snare drum.

Another incident involved three employees who had taken some clients out for a Christmas drink. After an evening of drinking (and not much food) they were thrown out of a karaoke bar for getting into a fist fight over which song to play next!

But it is not all fighting…

Feeling the love

An individual came to see us because her employment was being terminated. The company had held their Christmas party in their own offices. The individual and a number of her team got very drunk and retired to their own offices to carry on partying in private. In the meantime, the managing director, who didn’t realise the state of the team, was looking for this individual to introduce her to a new client who had been invited to the party. The company had spent a considerable amount of time and effort in winning this client’s work. The MD – with new client in tow – eventually found the individual lying on her desk with a member of her team using a lipstick to write  ‘Merry Christmas’ on her naked breasts.

Not feeling the love

At a Christmas lunch, a manager (and the strongest sales person in the company) decided to play footsie with the female member of his team sitting opposite (who just happened to be on the verge of a performance process). She was visibly shocked when she first felt her manager’s foot and asked him to stop. The manager, apparently having lost his sense of direction, moved his foot higher rather than lower. This one kept us busy for a while.

Santa’s little helpers can be mischievous

Secret Santa presents are a font of dispute mostly because the giver only remains secret for the time it takes to unwrap the present. Over the years we have helped clients deal with arguments over the appropriateness of presents such as a brown nose (given by a manager to one of his staff), a ‘willy kilt’ and porn videos.

People’s response to the appropriateness of these gifts, in particular ‘that was a rubbish present and I think you are trying to insult me’ can also lead to dispute.

What can you do to protect yourself?

In practice, employers will either have to show that they took reasonable steps to prevent the particular act or that they took reasonable steps to prevent that kind of act in general.

The defence is limited to steps taken before the act.

It is not sufficient to show that the complaint itself was promptly dealt with.

The defence typically contemplates the implementation and enforcement of guidelines for appropriate behaviour. But merely having such guidelines is not enough: tribunals will also consider whether these guidelines have management backing and are subject to disciplinary sanctions.

If an employee does behave inappropriately and is subsequently dismissed, the fact that you have guidelines in place will also help to defend any subsequent unfair dismissal complaint.

However, be aware that if you the employer provide or pay for alcoholic drinks at the Christmas party then it may be harder to discipline or dismiss any offending employee(s).

What do we recommend?

You may sound a bit like a party pooper, but to avoid disasters ensure that you send a memo before the party outlining expectations and highlighting what kind of behaviour will incur a disciplinary response. Typically:

• Do outline that this is a work event governed by the company’s policies and procedures;
• Do advise staff to be sensible about drinking alcohol and to make proper arrangements to get home safely – the company could usefully arrange taxis or provide booking details for taxis and public transport;
• Do remind staff to ensure they are fit to travel to work and perform their duties the following day unless they have already booked time off;

And remind staff of a few things they should not do:

• Don’t be persistent about getting that kiss under the mistletoe – unwanted sexual advances can cause a great deal of offence;
• Don’t choose anything that could be considered offensive as a secret Santa present – you may think it is funny, but the recipient might not;
• Don’t behave in a way that could be considered unacceptable. Behaviour likely to bring the company into disrepute will be dealt with under the disciplinary procedure and could result in your dismissal.

Is it all disaster? Of course not.

Most companies have a fantastic time, it is a great opportunity to reward hard work, raise morale and for staff to socialise with colleagues.

So, enjoy your party with our best wishes for a fantastic 2011.

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