Staff Matters

A wide range of events take place at Christmas, from small office groups socialising over warm white wine (plastic cups and peanuts provided) to joining organised functions with groups of employees from other local businesses in hotels – complete with buffet, bar and disco – or nightclubs until the early hours.

What happens when the party takes a turn for the worse and a “bit of a do” becomes a “bit of a brawl?”. Is it all harmless fun or is an employee at risk of losing his or her job? Should an employer have to consider disciplinary action if things get out of hand at the Christmas party?

The Christmas party, even if it is held off the business premises, can be considered by an employment tribunal to be “in the course of employment”, as it is a social gathering of work colleagues connected with work. The argument is that, but for the work, the employees would not be there.

It is possible for an employer to be liable for the acts of his employees, including issues of discrimination, harassment or even poor conduct – such as drunken fighting at a corporate event.

Tribunal claims can be made by the victims of harassment or other types of discrimination, citing the employer and also the employee who has allegedly carried out the harassment. It is possible, although rare, for employees to be held personally liable for acts of discrimination. With such risks, employers have to deal with cases every year where employees face disciplinary action and even dismissal for poor conduct at Christmas parties. It is obviously best to try to limit the risks of poor conduct before the event, perhaps by choosing carefully the type of party you have and limiting the number of free drinks available.

Some employers, who have had troublesome employees at a past event, make it plain to their employees before the party that they are expected to behave in a responsible manner and that poor conduct will be a disciplinary matter.

Making contacts

On the other hand, you may employ a sober, conscientious bunch of people, who are not particularly inclined to let their hair down. Instead, they may see the office party as an opportunity for networking and making good contacts, perhaps, even making such an impression on management that they come away with a promotion or a pay rise.

Employers should be wary of making ad hoc assertions, which may seem rational in the heat of the moment, but are regretted in the cold light of day.

One such situation ended up in a case going to the Court of Appeal in 2005. The case of Judge versus Crown Leisure Ltd (2005) IRLR 823 concerned a promise of a pay increase made at the firm’ s Christmas party. Thomas Judge was employed as one of three special operations managers by Crown Leisure. Another special operations manager was recruited in June 2001 on a higher salary than the other three existing staff. At the time, they were told that all managers’ salaries would be brought into line “in due course”.

At the Christmas party that same year, held for employees and partners, Mr Judge alleged he had been told by the special operations director that he would be put on the same salary as the new recruit within two years. The director denied that the conversation ever took place and that he would never have entered into a contractual discussion at a social event where alcohol was being consumed.

It was found that the original statement made in June 2001 (when the new employee was recruited) to achieve parity “in due course” was too vague to amount to a binding contractual promise and that the conversation at the company’ s Christmas party did not amount to a contractual promise. For there to be a legally binding and enforceable contract, there has to be certainty. To use some of the wording from the original judgement, the casual conversation that may have occurred “in the convivial spirit of the evening” was to reassure and comfort Mr Judge, and not a legally binding contractual commitment.

The moral of the story from the Court of Appeal? Perhaps it is just best to focus on the convivial spirit of the evening and avoid those “promises” under the mistletoe.