Christmas Parties and Employee Misconduct

With COVID restrictions now consigned to the past, Christmas parties are back. However, employers should remain aware of the potential pitfalls.

Getting your invitations correct

Prior to the event, employers should make sure they extend invitations not only to those currently working but also to those away from work on leave, including those on sick leave, who may be vulnerable and remain away from the workplace or are on maternity leave. In the recent case of Howie v Holloways of Ludlow Design & Build, an employer organised Christmas drinks but failed to invite one of its employees, who was on maternity leave at the time. The employee was successful in her claim for maternity discrimination.

Being responsible for employees’ actions

With the combination of alcohol and late nights also comes the potential for misconduct (or gross misconduct) from employees.

Employers should be aware that they may be held to be vicariously liable for the acts of their employees. In the case of Livesey v Parker Merchanting, the sexual harassment of a female employee by a male colleague both at the Christmas party and in the car on the way home was found to be “in the course of employment”. In this case, the employee successfully brought a claim against her employer.

Dealing with misconduct

If an incident occurs at a work-related social event, then it would likely constitute a disciplinary matter. As a result, January 2022 may be a busy period for managers and human resources departments. The usual rules around conducting disciplinary procedures would still apply, and employers will need to:

1. Check their own disciplinary procedure and the ACAS Code of Practice;
2. Consider whether it is appropriate to suspend the employee;
3. Conduct a fair and balanced investigation in a timely manner;
4. Hold a disciplinary hearing if there are sufficient grounds; and
5. Provide the right to an appeal.

Dismissing an employee

In the case of Bhara v Ikea, an employer fairly dismissed an employee who, whilst drunk at the work Christmas party, was in a physical altercation with a colleague. In Gimson v Display by Design, an employee was dismissed after assaulting a colleague on the walk home from a party. The fact that the incident occurred after the party did not make his dismissal unfair, as the walk home was considered sufficiently connected to the work event.

Be prepared

In the run-up to the Christmas party season, employers are encouraged to remind employees of the standard of behaviour that is expected, including forwarding any appropriate policies relating to conduct at work, in order to avoid potentially damaging and costly incidents.