By Stephen Jackson, employment law partner at Harding Evans Solicitors

There are apparently surveys which suggest that 4 out of 5 employers will not be organising a Christmas party this year. This is due to the fear of expensive legal claims which can follow on the back of simply inappropriate or downright appalling behaviour. Of course, it may be that many employers just use this as an excuse to hide their natural inclination to be a scrooge!
 

Leaving that category of employer aside, the rest of us may view the Christmas party as an important part of the work year, useful to thank and reward the staff for their efforts and to boost morale. It can be a powerful psychological factor in putting their work in a positive light and linking work with the concept of enjoyment.

On the basis that you are going to have a Christmas party because you hold this positive view or, because to cancel it would cause a riot, you may want to bear the following points in mind.
Firstly employers can be liable for the acts of their employees during the company’s Christmas party. The party, and all activities organised by the employer, can potentially be seen as an extension of work. The fact that the party is held at a hotel or pub makes no difference.

It is also important to highlight that employers potential liability is very wide. An employer must exercise its “duty of care” and take some responsibility for the welfare of its employees. The law against discrimination and harassment applies equally to the Christmas party as it does to any ordinary day at the office. In addition where employees know what conduct is acceptable and what is not acceptable, it is less likely that cause for complaint or any legal claim will arise.

Bearing these things in mind, there are some steps you can take to actually enjoy the party knowing that, if there is any less than savoury behaviour, you have prepared for it:

1. Whether or not you are providing free drink, do be prepared to step in and restrict drink where someone is losing sufficient control of themselves. In the case of one drinks company, three drunk employees who became embroiled in a fight were able to persuade a tribunal that their following dismissals were unfair, a factor in which the employer had provided a free bar and condoned their loss of control.

2. If you are going to provide a free bar, provide some food as well to soak up the alcohol.

3. Make sure there is a good supply of soft drinks.

4. Do not ignore the use of drugs. The Misuse of Drugs Act 1971 makes it an offence for an employer knowingly to permit the use, production or supply of any controlled drugs on their premises.

5. Consider sending out a notice or email to your staff reminding them of the Company’s Harassment Policy. Of course, this should not be done heavy handedly but employees must know that disciplinary action will be taken if anything that is regarded as harassment occurs. Employees should know that jokes or any behaviour which is likely to be regarded as offensive or to affect the dignity of others should not be made.

6. Do consider appointing a senior person, or perhaps a few on a rota, to keep an eye open so as to curb any signs of inappropriate behaviour. Remember that discrimination and harassment is prohibited not only on grounds of sex and race, but also now on sexual orientation, religion and belief, age and disability. (The only reason Ricky Gervais’ character in The Office didn’t end up in an Employment Tribunal was because you don’t get many laughs in an Employment Tribunal!).

7. Do not make attendance compulsory, as this may be against religious belief of some of your employees.

If you are inviting employees’ partners be careful not to exclude partners of the same sex. If inviting only husband and wives then the invitation must also be to partners registered under the Civil Partnership Act 2005.


It is best to avoid discussing bonuses, salary, promotion and career prospects etc at the party. Although there is good and sensible case law which recognises that an employer may be unlikely to intend to make any binding promises at a party, the employee’s expectations may be raised and failure to meet those expectations can result in disaffection.

In addition do consider travel arrangements for the end of the party. Provide phone numbers for local taxi companies, consider ensuring the party ends before public transport stops running.

Finally, consider in advance what attitude you will have towards staff coming to work the following day with a hangover, arriving late or not at all. If you intend to take disciplinary action, you should make clear in advance that you expect staff to turn up for work fully sober and should, therefore, not drink too much alcohol. If you have employees who operate potentially dangerous machinery, you should also ensure that they are fit to use that machinery when they turn up for work.

When all is said and done, most employers engage some sense of perspective and context and the majority of Christmas parties still pass without giving rise to an Employment Tribunal complaint. Happy Christmas!