Are you liable for your staff’s Christmas party antics?
This article was first published by South West Business on 11 December 2017.
Office parties can cause headaches in more than one way. As well as for employees, many employers find themselves having to decide how to ensure employees behave appropriately and how to deal with worse-for-wear workers who turn up late the morning after the big event. With all of this to consider, it’s important for employers to be aware of what they could be liable for in the event of misconduct and how this risk can be reduced.
When is the employer liable?
Employers are vicariously liable (legally responsible) for the acts of their employees carried out 'in the course of employment'. But the risk does not disappear when the employees leave the workplace – even events held off site and out of normal working hours can fall within that definition.
For example, if Employee A harasses Employee B at a Christmas party, Employee B could potentially bring legal action against their employer.
These claims can arise from many things, from harassment and violence to discrimination – some of which is not always clear cut. Employers should ensure policies on such issues are up to date, and that they have been brought to the attention of all employees ahead of the event.
An employer has a defence to a claim if it can show that it took all reasonable steps to prevent the employee from performing the act. Communicating expectations for staff events, particularly where alcohol is involved, and making clear reference to the code of conduct and disciplinary policy will help to protect the employer's position.
It is important to take pre-emptive action to ensure employees are aware of their obligations prior to the event as well as reducing the employer’s influence on negative behaviour. That way, the employer limits their exposure to any unauthorised conduct which an employee may then go on to commit.
For example, while a free bar can be a great treat for employees, it might bring with it significant consequences. Not only does it increase the likelihood of incidents occurring, but there is case law to suggest that, as an employer, you are more likely to be held liable for any issues that occur if you are found to have supplied the alcohol which contributed to the actions of your employees.
But of course, it isn’t all about employment law issues. The Christmas party is also a brilliant way of maintaining staff morale and making employees feel appreciated. Ultimately, high staff morale generally equates to improved levels of motivation and productivity.
With that in mind, decisions such as the time of day that the office party takes place, for example, are also important. Employers should ensure that staff do not feel disadvantaged if, for instance, the event is in the evening but they cannot attend due to childcare commitments. Equally important is considering the logistics of the event. Will you be providing transport for your employees to get to and from the event, or have you researched until what time public transport runs? Employers have a duty of care for their staff so their safety should be taken into consideration.
Finally, be sure that everyone gets an invitation. Employees on sick leave and those taking maternity/paternity leave, for example, should all be invited. They may decide not to attend, but failing to invite them will be detrimental to staff relations.
Communication is key
The best way for employers to reduce any potential risk of liability in the event of an issue is to ensure there has been as much communication as possible ahead of the event, in terms of what is expected from employees and when the event officially ends.
It may be that you will want to review your employee code of conduct, providing a clear policy on the standards of behaviour expected at office parties and what kinds of behaviour are unacceptable. By doing this you can ensure that if any behaviour that falls outside of the policy you have evidence that you took all reasonable steps to prevent the employee from performing the act.
Equally, by confirming the timings of the event beforehand you may well be protected if any inappropriate behaviour takes place outside of those hours.
Finally, confirm your policy for the following day. For example, consider whether you will allow your employees to come in later the following morning. You might also want to provide them with details regarding recommended timings for driving after a night of drinking.
While there is always a slight risk that employers can run the risk of dampening the festive spirit, the advantages of communicating as much as possible before the event are clear to see. You can enjoy the party safe in the knowledge that you have prioritised the safety of your staff and reduced your risk of liability should any issues arise. You may even have time to relax and enjoy a drink or two yourself!