Office Christmas parties are considered work for the purposes of discrimination law, so employers need to ensure that things do not get out of hand or they could leave themselves open to complaints from staff. Katee Dias explains.
THE PROBLEM
I threw a big after-work Christmas party for all of my staff. I thought it had been a roaring success but then I received a letter from an employee complaining about her manager's behaviour towards her during the party. She says he was harassing her by making inappropriate comments. Can I be held responsible for this?
THE LAW
Harassment is a form of discrimination and is defined in legislation as being unwanted conduct that has the purpose or effect of violating a person's dignity or creating an offensive, intimidating or hostile environment. Harassment on protected grounds - for example, sex, race, age, disability, and so on - is unlawful.
Generally speaking, an employer is responsible for the actions of their employees while they are at work. This is a concept known as "vicarious liability", which means that if one employee harassed another during the course of their employment, their employer may be liable. However, it should be noted that a claim of harassment can also be brought directly against the harasser.
Potentially, there is a statutory defence that an employer can raise if faced with such a claim. This applies where an employer can show that it took reasonable steps to prevent the harassment from occurring. Most commonly this is demonstrated by having an anti-discrimination and harassment policy, regular equal opportunities training and making a concerted effort to stamp out discriminatory behaviour in the workplace.
EXPERT ADVICE
In your situation, the alleged harassment took place during your Christmas party. The first question is, therefore, whether that party is "in the course of employment". The general rule is that such events are considered as being "work" for the purposes of discrimination law. The principle reason why employees were attending that event is because of their employment. This means that you are potentially liable for the behaviour of the manager.
In terms of what action you need to take now, the employee's complaint should be treated as a formal grievance and, therefore, you need to undertake an investigation into the allegation. The Acas Code of Practice on Disciplinary and Grievance will apply. If the grievance is upheld, it is also likely to be necessary to take disciplinary action against the harasser. However, the type of action will depend on the particular circumstances and, again, the principles of the Acas code will apply.
You should also bear in mind that your employee may treat herself as being constructively dismissed if you do not take her grievance seriously or do not take appropriate action against the harasser.
Should your employee go on to bring proceedings before an employment tribunal, you will be faced with having to defend a claim. It may be possible, depending on your employment practices, that you are able to rely on the statutory defence.
CHECK LIST
- Remember that Christmas parties are an extension of employment. While trying not to be a killjoy, consider reminding employees to act accordingly.
- During such functions, ensure that managers are alive to the possibility of inappropriate behaviour and that they are trained to deal with it before it gets out of hand.
- Introduce a comprehensive anti-discrimination and harassment policy.
- Always treat complaints of discrimination or harassment seriously - usually as a formal grievance. Remember the principles set out by the Acas Code of Practice.
BEWARE!
There is no cap on the amount of compensation that an employment tribunal can award to an employee who successfully brings a claim of discrimination or harassment. Damages will be awarded to compensate them for any injury to their feelings as well as for any financial losses, such as loss of earnings, that they may have suffered.
CONTACT
Katee Dias, Goodman Derrick LLP
020 7404 0606