· Comment

Christmas parties: social media, sexual harassment and the right not to attend 

The annual Christmas party is a tradition that has endured in the UK, despite disruption and societal change in recent years. It is worth employers reminding themselves of the pitfalls of an old-fashioned office party, as well considering how to deal with the new risks brought about by social media.

The pandemic meant that most parties around Christmas were put on hold or held virtually. This year employers will have likely returned to the traditional party format, so it is sensible for employers to consider taking steps to avoid inappropriate behaviour.  

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Companies may wish to issue a brief reminder to employees prior to the event confirming the standards expected and of possible disciplinary sanctions if staff misbehave.

Situations involving alcohol can escalate; in Gimson v Display By Design, an employee who punched a colleague after a Christmas party was fairly dismissed for gross misconduct.  

To avoid such issues, employers should be wary of offering a free bar, should limit the alcohol on offer, and should be careful to ensure that staff do not feel pressured to drink.

To avoid problems on the road, employers may consider providing taxi numbers or offer to pay for licensed taxis. 

The fact that almost everyone has a camera in their pocket and the ability to publish images or statements to a wide platform, is a phenomenon of our times.

This ability clearly brings with it increased risk for companies if workers fail to remember that the event is an extension of the workplace.  

While most can be trusted to act appropriately, identifiable employees behaving badly have made headlines recently, including a drunk City worker on the tube and a Wagamama waiter wearing his work uniform, both of whom were filmed taking cocaine in videos that went viral.

To send a clear signal to employees about company expectations of their conduct online, employers would be wise to adopt a social media policy. 

Employers should be cautious about mandating attendance at boozy work events around Christmas after a PwC employee, having suffered a serious head injury on a work pub crawl, recently claimed £200,000 from the firm.

As a rule, employees should not have to attend work socials if they do not wish to.

Theoretically, in a sector where networking is central to the job, a company may be able to instruct an employee to attend a certain event.

If employees fail to follow instructions, it could become a disciplinary matter or could be related to poor performance. However, in practice, employers should be wary of enforcing such aggressive measures.

An employee with a protected characteristic (such as a female employee with childcare responsibilities or a religious employee) should not be forced to attend an event, or potential discrimination claims could arise.

Management should lead by example. Senior staff would be wise to discourage afterparties, even if they take place out of work time and off the premises.

In the Court of Appeal case of Bellman v Northampton Recruitment an employer was held vicariously liable when the managing director seriously assaulted an employee at a gathering after the Christmas party.

Even though they were impromptu drinks at a separate venue which were not a seamless extension of the company Christmas party, in the court's view, the attack arose out of a misuse of the position entrusted to the managing director.

This case shows that employers can still be liable for unauthorised activities which take place away from the workplace.

Sexual harassment is possibly the most likely claim to arise as a result of a Christmas party. Employers should note that employees can complain about conduct they find offensive even if it is not directed at them.

An employee might make a claim about a colleague who pushes the boundaries on appropriate behaviour, even if they are not the one on the receiving end.

Workers should feel comfortable to report harassment and will be more likely to do so if employers make it clear that they take a zero-tolerance approach to it.

That means, if an employee mentions an incident, employers should take it seriously.

Companies should check they have up-to-date policies covering discrimination, harassment and bullying.

It may also be sensible to provide training to encourage those responsible in the organisation to report issues, investigate properly and follow correct disciplinary and grievance procedures.

To avoid potential issues arising, employers may consider carrying out a risk assessment. 

Although the holiday season presents some possible legal risks for employers, being cautious should not throw any gloom over the festivities.

To the contrary, the more careful employers are, the more likely their employees will feel comfortable and able to enjoy themselves at work events this Christmas. 


Michael Kerrigan and Eleanor Parkes are employment law specialists at Debenhams Ottaway.