Santa 52

Without wishing the year to pass more quickly than it already has, by the time this article hits the press Christmas will almost be upon us.  Many organisations will be arranging Christmas parties, however, despite seasonal fun and laughter, there are some important areas to consider.

It seems that with every passing year, and ever increasing employment legislation, not to mention case law precedent, it is almost impossible not to offend someone`s sensitivities and as we all know you can’t please all of the people all of the time!  How many times has the party organiser heard “I don`t want to go there”, “I’m sick of turkey”, “can’t we just have the money instead?”  Then there is the employee who has too much to drink and becomes obnoxious, over familiar or abusive about work colleagues or management.  Is it really worth it?

Some employers believe the Christmas party is one way to express their appreciation for everyone`s efforts throughout the year and often this becomes an accepted or expected annual event, especially when the employer pays the bill, including any alcohol.  Employees need to be aware that although such events may be held outside of normal working hours, the normal rules of behaviour still apply.  For example, any employee, who has had too much to drink, can still be disciplined for improper and inappropriate language, threatening behaviour or sexual harassment.

If sufficiently serious this could result in dismissal but do give consideration that any case for dismissal could be weakened if the employer has footed the bar bill.  It could appear that the employer has encouraged people to drink excessively and/or possibly failed to control the individual at the time, which may be deemed as condoning the drinking and unruly behaviour!

If such a case does arise, you will need to investigate the incident without delay and obtain witness statements in the normal way and warn the individual concerned that one possible outcome could be dismissal (in which case suspension may be necessary).  Follow a proper procedure and you will not go far wrong as these days a fair procedure is crucial.

You should make sure that there is a non-alcoholic alternative available and any dietary needs can be accommodated, although most restaurants automatically offer vegetarian options and even gluten free these days.  Just make it clear to all your employees that everyone is invited not withstanding any personal preferences.

On balance it is a good idea to get everyone together for a festive social gathering and thank employees personally.  Be aware of the possible danger of allowing an employee to drive if they have been drinking alcohol, especially where a free bar has been provided!  Insist that the employees make suitable transport arrangements and aim to get home safely.  Ensure there is the facility to arrange taxis or a lift home by another employee who is not drinking.  Last year there was a case where a salesperson who had been drinking chose to drive his car a short distance from the party venue to a hotel where he was staying overnight (the hotel was within walking distance).  This decision proved to be very costly as he was stopped by the Police as he left the venue which resulted in him not only losing his driving licence but his job!

One of our clients has already posed the question of what will be the repercussions, if any, if they decide not to arrange any Christmas festivities as this breaks a long tradition of many years.  With a very great stretch of the imagination it might be argued that it is an implied term due to custom and practice, however it is not contractual and in the current economic climate it would be acceptable from a business perspective to inform employees that this year, due to financial constraints, the Christmas function is cancelled! It is the opinion of Alcumus that the worst that would happen would be a few “bah humbug” comments and you being crossed off a few Christmas card lists!

While the Christmas party is a great opportunity to let off steam and you do not want to appear to be a kill joy, it is worth reminding all employees in advance that they are representing you as an employer and that their conduct should reflect this at all times so they must drink responsibly.

In the unfortunate event of misconduct occurring, you might ask whether this could lead to disciplinary action, given that parties are often out of normal working hours.  The short answer; is yes.  If you opt to have a Christmas party, it is only right that employees enjoy themselves, however if misconduct occurs, this should be handled in the same way as if it was normal working hours.

The Employment Tribunal Case of Gimson v Display By Design Ltd provided a useful example of this.

In December 2011, Mr Gimson was walking home with colleagues after the Christmas party and, following a disagreement, punched one of his colleagues.  After investigation and a disciplinary hearing, Mr Gimson was dismissed for gross misconduct.  He argued that the incident was not misconduct because it happened outside the course of employment and therefore outside the employment relationship, and that he received an inconsistent sanction because his other colleagues involved in the incident were treated more favourably.

The tribunal disagreed with Mr Gimson that the incident was not in the course of employment, concluding that it was reasonable to connect the events after the party with work and that they would have an impact on the working situation.  In relation to Mr Grimson’s claim of unfair treatment, the tribunal again disagreed; finding that the dismissal was a reasonable response to the misconduct proved.

As with any disciplinary sanction, it is essential you can show that a thorough investigation has taken place prior to proceeding to a disciplinary hearing and sanction, and that the disciplinary sanction was a reasonable response.  For Display By Design Ltd, this was found to be the case.

It is also worth considering that misconduct can also occur via use of the internet, email and social media.

In today’s climate, employees might be tempted to carry on the frivolities via the likes of social networking sites.  While it might seem a good idea to circulate a few photos of the work’s party, you should ensure employees do not circulate or post derogatory comments about their employer or harass their colleagues.

In the Employment Tribunals, in the cases of Preece v JD Wetherspoon and Crisp v Apple Retail (UK), employees were found to have been fairly dismissed for making derogatory comments about their employer on Facebook.  Key to both cases was that the employers had clearly worded policies stating that employees could be disciplined for making derogatory comments on social media.

In Whitham v Club 24 Ltd however, the tribunal found that dismissal was not fair as the derogatory comments made on Facebook were relatively minor. Whether any disciplinary sanction is a reasonable response will depend on the seriousness and impact of the misconduct that has taken place; such as making derogatory comments about the employer or an employee, circulating inappropriate images etc.

If you have any queries about managing Christmas Festivities, please do not hesitate to speak to your HR Consultancy team.


Richard Denton – HR Consultant, Alcumus Group