Oh Holy Night 

We are in the midst of the annual Christmas Party Season. If you haven't already, we’ve no doubt that many of you will be looking forward to donning your novelty Christmas jumpers and Santa hats to embark on a fun night out with your colleagues. Whilst office parties often serve to build relationships and camaraderie in the work place sometimes the hangover can extend beyond an inevitable sore head. In our latest employment update we will explore how the fall-out from office parties can leave Employers facing claims in the Industrial Tribunal and consider what lessons can be learned from existing case-law in this area. 

Lesson 1 – Employers can be held liable for discrimination which occurs 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, 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.

In the circumstances of this case the Judge held that the company could have been liable if the blow had been struck during the Christmas party itself, but as the assault occurred in a hotel during a private drinking session, the company was not vicariously liable

The above case should however be contrasted with the case of The Chief Constable of Lincolnshire –v- Stubbs. In this case the Respondent was held vicariously liable for sexual harassment of a female officer which took place outside of work. The Claimant, a female officer, was subjected to crude comments by a fellow male officer at a retirement dinner that they were both attending. The Respondent contended that since the Claimant was not at work it could not be liable for the male officer’s conduct. The Tribunal disagreed however and found that “attending a public house for relaxation immediately after the end of the working day is, in our view, merely an extension of employment….”

Lesson 2 – An employee can be disciplined for actions outside of the workplace:

In a similar vein to the above judgement 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.

Lesson 3 – Do not 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 Claimant in this case, 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 within two years 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. Employers should note however that the mere context in which this promise was made did not in itself render it unenforceable. Had more clarity been provided on this issue, such as a specific time frame within which parity of salary would be achieved, the outcome may well have been different.

Lesson 4 – Ensure that post office party banter and gossip does not go too far:

The case of Nixon –v- Ross Coates Solicitors provides an example of how post Christmas party gossip in the office can go too far. 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 during a Christmas Party Ms Nixon was seen kissing the office IT manager at the end of the evening. Ms Nixon fell pregnant shortly thereafter and rumours regarding the paternity of her child were rife within the Respondent workplace. Ms Nixon alleged that the Respondent’s Head of HR was responsible for these rumours and that she had commented on the paternity of her child. She submitted a request to move office which was refused and the Respondent failed to investigate a grievance raised. As a result Ms Nixon resigned claiming constructive dismissal and discrimination on the grounds of her pregnancy.

Her claims were successful on appeal to the Employment Appeal Tribunal. It concluded that discrimination had occurred as gossip surrounding the paternity of her child constituted less favourable treatment connected to her pregnancy.

Lesson 5 – Beware of the ‘free bar’:

In this Australian case decided in January 2015 Mr Keenan was dismissed by Leighton Boral Amey Joint Venture (LBAJV) following his conduct at its Christmas night out. On the night in question the charming and affable Mr Keenan 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, including two beers before he arrived and a vodka and coke after the party at a public bar attached to the same venue.

Somewhat surprisingly the Fair Work Commission (FWC) found that Mr Keenan was unfairly dismissed. The FWC took into account that the behaviour was as a result of his intoxication and stated that “it is contradictory and self-defeating for an employer to require compliance with its usual standards of behaviour at a function but at the same time to allow the unlimited service of free alcohol. If alcohol is supplied in such a manner it becomes entirely predictable that some individuals will consume an excessive amount and behave inappropriately.”

While 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. We would suggest that there is some logic in the argument advanced by the Australian Fair Work Commission however it remains to be seen whether our own Tribunals give this line of argument any credence in early 2017. 



 

 

 

 

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