EMPLOYMENT LAW

How to avoid the nightmare before Christmas...

We are now in the midst of the annual Christmas Party Season. Whilst this is the time of year to spread cheer, unfortunately we feel that it is appropriate to address some issues which may arise from any office party ‘drama’ in order to avoid legal issues in the New Year.

In our latest employment update we will explore how the fall-out from office parties can leave employers facing possible claims in the Industrial Tribunal and answer some of the main questions you may have.

Can employers be held liable for acts which occur outside the workplace?

The recent High Court case of Bellman v Northampton Recruitment involved an assault of a manager by a director after a Christmas party. Following a work Christmas party the two individuals, along with other colleagues, went on to a hotel and continued drinking until the assault occurred at 3.00 am. The assault caused serious brain injury to the manager and he subsequently issued proceedings against the Company.

Whilst the High Court ruled that the company was not vicariously liable, the Court of Appeal upheld the appeal stating that although the altercation occurred at the Hotel premises and not at the Christmas Party, the Managing Director, Mr Major had worn his “metaphorical director’s hat” by lecturing the employees on the power he had as the Managing Director and asserting his authority over them. Therefore, the Court of Appeal ruled that the company was vicariously liable for this assault. 

Can an employee be disciplined for actions outside of the workplace?

In Gimson –v- Display by Design Ltd an Employment Tribunal found that an Employer was entitled to dismiss an employee for an incident which occurred after a work night out had ended. After the Respondent’s office Christmas Party Mr Gimson was walking home with a group of colleagues. A disagreement arose which resulted in Mr Gimson punching another colleague in the face. His claim for unfair dismissal was dismissed by the Employment Tribunal who found that the incident was sufficiently closely related to work to invoke the company’s disciplinary procedures. The Tribunal reasoned that he would not have been walking home with his colleague save for their attendance at the office party.

Should I make promises to staff while under the influence?  

In Judge –v- Crown Leisure Ltd an employee claimed constructive dismissal on the basis that his employer failed to fulfil a binding contractual commitment to increase his salary. The employee, Mr Judge, contended that a Director of the Respondent made a promise to him at a Christmas Party to align his salary in due course with that of a newly recruited employee. When this promise did not materialise, Mr Judge resigned and claimed constructive dismissal.  

His claim was ultimately dismissed as it was found that the Director’s words were not sufficiently certain to amount to a contractual intention. However, employers should be aware that had this promise been more specific with details of time frame of the salary increase, the Tribunal may have found that the Employer was contractually bound to follow through with this. 

Where to draw the line with after-party banter gossip?

An example of how post Christmas party gossip can go too far can be seen in the case of Nixon –v- Ross Coates Solicitors. Ms Nixon was employed by Ross Coates Solicitors in a business development role and was in a relationship with a solicitor within the practice. However near the end of the Christmas Party Ms Nixon kissed the office IT manager. Ms Nixon fell pregnant shortly thereafter and rumours regarding the paternity of her child were rife within the Respondent workplace. She submitted a request to move office which was refused and the Respondent failed to investigate a grievance she had raised. As a result Ms Nixon resigned claiming constructive dismissal and discrimination on the grounds of her pregnancy.

Can employees use the free bar as an excuse for unacceptable behaviour?

In an Australian case decided in January 2015 Mr Keenan was dismissed by Leighton Boral Amey Joint Venture following his conduct at its Christmas night out. On the night, Mr Keenan had told a company director to ‘f**k off’ when he attempted to join a conversation. He later asked a female colleague for her phone number, called another a ‘bitch’ and kissed a further female colleague telling her he was going to go home and dream about her. The Fair Work Commission heard that Mr Keenan consumed 13 drinks on the night.

The FWC found that Mr Keenan was unfairly dismissed as the conduct which occurred after the official function had ended “out of hours” conduct and therefore a higher level of misconduct was required for it to constitute a valid reason for dismissal. The FWC took into account that the behaviour was as a result of his intoxication and stated that “If alcohol is supplied in such a manner it becomes entirely predictable that some individuals will consume an excessive amount and behave inappropriately.”  

Whilst this is a worrying development for any fan of a ‘free bar’ we must highlight that this judgement does not apply in Great Britain or Northern Ireland. However, Employers may wish to consider this when making the decision to provide an open bar to employees and the possible outcomes of this decision.

Notwithstanding all of the above, we hope you enjoy your Christmas party!

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