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Should employers fear the office Christmas party? Staff misconduct outside the workplace

Posted by Lesley Furber on Dec 12th, 2018 | Employment law

Your office Christmas Party is, hopefully, normally pretty lively and good fun. However, Employers can face problems if their staff ‘misbehave’. Without being too much of a Grinch there are a few things that you need to take care of to ensure everything goes smoothly.

This article covers:

Employers need to ensure that they’ve carried out a health and safety risk assessment of the venue and any activity planned, and documented any risks and mitigation identified. To be on the safe side, you should also explain to all your staff the standards of acceptable behaviour that are required from them at the Christmas Party.

Please also see our related article – Misconduct inside the workplace.

This is because:

  • Employers can be held liable for harm (under health and safety laws)
  • Employers can be held liable for negligent conduct by their employees.
  • Employers have a responsibility for the actions of their employees, even outside normal working hours and outside of the normal working environment, because any social event organised by an employer is an ‘extension’ of the workplace – regardless of the place or time of the event
  • Employers can be held liable for any discrimination acts, caused to, or done by, your employees. The Equality Act 2010 continues to give protection from sexual harassment but now also gives protection to harassment on the basis of disability, age, gender reassignment, race/religion or belief and sexual orientation.

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There are a number of simple steps that an employer can take to stop things getting out of hand at the Christmas Party, including:

  • Designate a manager who will stay alcohol-free so they can keep an eye out for any unacceptable or potentially dangerous behaviour
  • If you’re offering free drinks at the party, put a limit on the free bar (to try to prevent accidents, fights, or any incidents that might be seen as, or lead to, harassment)
  • Consider how your staff will get to the party and get home safely
  • Consider the needs of all of your staff – will mothers be able to arrange childcare at the time of your party? Will members of some faiths be able to make the day of your party? Ensure there is food to meet all employees’ religious and cultural requirements; ensure there are non-alcoholic drinks available; consider if you need to provide assistance for any disabled staff
  • Before the party, remind your staff of the behaviour that is not acceptable (make a list if necessary!) and how any unacceptable behaviour will be dealt with – i.e. that the normal disciplinary procedures will apply in the event of any incident
  • Remind staff that you expect them to come into work on time the next day and be capable of working (if indeed you do)
  • Also remind staff that they can raise any complaints and they will be taken seriously.

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Directors Responsibilites guide - Find out what you need to do

Grimson v Display by Design Ltd

In Gimson v Display by Design Ltd, Mr Gimson was walking home with colleagues after their work Christmas party. Gimson had a disagreement with one of his colleagues (Kyle) and then punched another colleague (Davey) in the face when Davey tried to stop the situation (causing Davey serious injury).

The Employer summarily dismissed Gimson for gross misconduct after its disciplinary investigation concluded that Gismon was not provoked. Gimson claimed unfair dismissal, arguing the incident was not misconduct because it happened outside the course of his employment. Gimson also said that he had received inconsistent treatment as his other two colleagues had been treated more favourably (Kyle received a final written warning, and Davey was not disciplined at all).

The Tribunal felt that the employer genuinely believed that Gimson had assaulted a colleague after a work event; it also had reasonable grounds for this belief and had carried out as much investigation into the incident as was reasonable in the circumstances. The Tribunal found that the Employer had reasonably concluded that the events after work were sufficiently closely connected to work to have had an impact on the working situation – it was as a result of the party that Gimson and some colleagues were walking home together, and on that walk the assault happened, which would have impacted on the working environment in the small company.

The Tribunal also found that Gimson’s treatment was not inconsistent because:

  • There was no evidence that Gimson had been provoked
  • Davey was the ‘peacemaker’ trying to stop the situation
  • Gimson did not accept that his conduct was unacceptable and he had not show any remorse
  • Kyle was apologetic and had not hit anyone.
Bhara v Ikea Ltd

In Bhara v Ikea Ltd, Mr Bhara was involved in organising the branch’s Christmas Party. He was a ‘well-regarded’ employee and only when he had finished his hosting duties at the party, at 10pm, did he start drinking. At 11.30pm, Bhara warned a colleague, Mr Sutton, not to drink too much as he was working the next day. Mr Sutton reacted angrily and a “tussle” ensued.

The employer investigated the incident but both the men played down the “wrestling match” – Bhara saying it was a “play fight” and Sutton saying it was “mates having a laugh”. The employer eventually dismissed Bhara, finding him guilty of “physical assault” that had “a damaging effect on the Ikea brand and brought the company into disrepute”.

Bhara claimed unfair dismissal and the Employment Tribunal found that the Employer’s actions were within the range of ‘reasonable responses’ available to an Employer. There had been an extensive investigation and they had reasonable belief in the misconduct – this justified dismissal. The employer was entitled to treat fighting with a colleague as a “matter of utmost seriousness” even if there was no “lasting hard feelings” between Bhara and Sutton.

Bellman v Northampton Recruitment

In Bellman v Northampton Recruitment, in October 2018, the Court of Appeal found that Northampton Recruitment was vicariously liable for its Managing Director’s actions. The MD, John Major, had punched an employee (Mr Bellman) so hard after a Christmas Party he was left with brain damage. (This ruling by the Court of Appeal overturns the previous decision by the High Court). Mr Bellman, age 62, was a Sales Manager for Northampton Recruitment.

He attended the Christmas Party, organised by Mr Major, at a Golf Club. Alcohol was provided by the Company at the party. Around midnight, when the party was close to ending, some members of staff moved onto a nearby hotel bar to carry on drinking (this was not pre-planned). At 3am some staff were still at the bar, and they started discussing a new starter who they thought was being paid more than anyone else.

The MD became ‘annoyed at being questioned’ about the new appointment and said “I f***ing make the decisions in this company, it’s my business”. He hit Bellman twice, and the second blow made Bellman fall backwards and he hit his head on the marble floor, which knocked him out. Bellman suffered a fractured skull and later had a metal plate inserted in his head. In the original High Court judgement, the Judge felt that the after-party at the bar was “entirely independent, voluntary and … unconnected with the defendant’s business”, and he rejected Bellman’s claim.

Bellman appealed to the Court of Appeal. At the CoA the judges unanimously agreed that Northampton Recruitment was liable for Major’s actions at the bar. It did not matter that it was an ‘after’ party, what was important was that Major had chosen “to wear his metaphorical managing director’s hat… to deliver a lecture to his subordinates”. The amount of Mr Bellman’s damages’ pay-out has yet to be assessed, but his lawyers say he is claiming over £1 million.

Lessons for Employers – distance yourself from any ‘after party’ and make it clear that you do not endorse or support these in any way.

Cameo Club v Phillips

In December 2018, in Cameo Club v Phillips, a Tribunal found that a Bar Manager, who was choked by a Chef colleague at a staff Christmas Party, had been constructively unfairly dismissed by her Employer.

At the party the Clubs’ Chef, Mr Webb, had gripped Phillips’ neck and left her unconscious (which left her with anxiety, PTSD and partial facial paralysis) at a party on the Club’s premises on 1st January 2017 (which was filmed on CCTV).

The next day, Phillips could not remember the incident, but because of her injuries she later checked the Club’s CCTV footage from that night. The Chef was arrested but later released under investigation (and continued working at the Club).

Phillips initially returned to work and took no further action, but was uncomfortable around Webb and told her Employers she doubted their ability to keep her safe at work. Eventually, she said she felt she had no other option than to resign because they had failed to take her complaint seriously; she then claimed constructive dismissal.

The Court found the Clubs Directors’ attitude towards the CCTV footage and the incident itself, unsatisfactory, with one of them joking about the incident and the other telling her to “get over it”.

Lessons for employers – take any complaints from your staff seriously!

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Dismissal where criminal behaviour is involved

In The Post Office v Liddiard, the Court of Appeal found that an employer could consider whether or not an employee’s conduct outside of work had brought the employer into disrepute when deciding whether to dismiss him.

Liddiard was convicted of assaulting a French police officer during a football World Cup tournament. The case received considerable publicity in the tabloids and even comments from the Prime Minister that he hoped the employers would take strong action. He was consequently dismissed for gross misconduct because of the press coverage (not for the conviction), because it brought the Post Office into disrepute.

In clashes between rival supporters, Mr Liddiard admitted that he had thrown bottles at rival fans and was charged with an armed attack on a police officer with aggravating circumstances. He was tried and convicted in France and sentenced to 40 days imprisonment.

Mr Liddiard’s argument was that the decision to dismiss him had been based upon newspaper and political pressure and he won his original case at the Employment Tribunal. The Post Office’s appeal to the EAT was unsuccessful, so they took their appeal to the Court of Appeal.

The Court of Appeal felt that the Tribunal had misunderstood the position of the Post Office. They had dismissed Liddiard because he had brought the Post Office into disrepute and the articles in the press and the statements by politicians were evidence of that, rather than the cause of that.

Mr Liddiard had also contended that he was innocent of the charge, but the Court of Appeal rejected this claim. They said that the employer was perfectly entitled to rely upon a conviction in France just as much as they were entitled to rely upon a conviction in England.

If someone has committed a criminal offence outside of work, what does an employer do?

An employer is entitled to dismiss an employee who commits an act of misconduct. However, a criminal conviction is not necessarily misconduct in the employment relationship. Acas say that: “If an employee is charged with, or convicted of, a criminal offence this is not normally in itself a reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers”.

Employers need to consider the following:

  • if the criminal conduct is relevant to the employee’s work
  • if there is a risk to the employer’s reputation
  • if there is a breakdown in relations between the employee and colleagues
  • could the employee continue in their job if safeguards were put in place?

If the employee has received a custodial sentence, then often their employment will be terminated automatically as the employee can no longer perform their work – this is called ‘frustration’. But be careful about the length of the custodial sentence – if it is only for a short period of time, the employment contract may not be ‘frustrated’.

What if an employee is charged with a criminal offence but then later on is not actually convicted, and in the meantime you have dismissed them?

Whether the dismissal will be fair is dependant upon whether you, the employer, reasonably believes, after your own investigation, that he/she is guilty or there has been enormous damage to your reputation because of his/her actions.

Clearly, your own investigation will not be easy if there is a criminal prosecution under way, as the police will not/should not provide you with evidence. However, you need to form a reasoned and independent view of your employees’ guilt, and not make a quick reaction to a police enquiry or charge alone, by dismissing them straight away.

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What should you do if made redundant?

In Kuehne & Nagel Ltd v Cosgrove, a warehouse operative was dismissed following a positive drugs test. The Company’s substance abuse policy said that a positive test for illegal substances would be classified as gross misconduct. The claimant admitted to using cannabis outside of work but had never been under the influence of cannabis at work.

The Employment Tribunal found that this was unfair dismissal, but the Employment Appeal Tribunal disagreed. They said the correct test for the fairness of dismissals for misconduct was whether the employer actually believed that the employee was guilty of misconduct, whether they had reasonable grounds on which to base that belief and whether they had carried out as much investigation as was reasonable. The employer had considered these so the dismissal was fair.

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In Symes v The Pepperbox Nursery Ltd in 2011, the Employment Tribunal agreed that the employer was justified in dismissing an employee whose husband had been charged with possession of child pornography, as it was necessary to protect the nursery’s reputation.

If an employer thinks an employee is “guilty by association” because of their relationship with someone outside of work, what can they do? (e.g. an employee is in a relationship with someone with extreme views or actions, or they ‘keep’ unsavoury company on Facebook):

  • Consider your main concern – reputation, loss of a client, a health and safety concern?
  • Ask yourself: how serious is the breach? Assess any evidence of damage (actual v potential)
  • Check Company Policies and the Employment Contract
  • Check any safeguarding or other legal requirements in your particular profession/industry
  • How senior is the employee? Ordinary staff have an obligation to act with trust and loyalty to their employer; Senior staff may have higher obligations
  • Is the employee ‘at fault’ for the association – did they initiate it or did it happen by chance? Could they have done anything to prevent the association?
  • Listen to the employee.

In Reilly v Sandwell Metroplitan Borough Council, in 2018, the Supreme Court held that a Head Teachers’ dismissal because of her association with a person convicted of possessing indecent images of children was fair.

The Head Teacher (‘R’) had worked for a primary school since 2009 and she had a perfect disciplinary record. However, in her personal life, she had a non-romantic relationship with ‘S’ and she occasionally stayed at their jointly owned property. Just before she was employed as Head Teacher by Sandwell, she witnessed the police search their joint property and arrest ‘S’ (and later convict him) for downloading indecent images of children.

R did not tell the school about her association with S (even though she had taken advice about whether to or not) and in June 2010 the school became aware of this relationship and S’s conviction. The school concluded that R’s failure to disclose the relationship to them amounted to gross misconduct (for a serious breach of an implied term of her contract of employment).

R disagreed and claimed unfair dismissal, based on the fact that there was no duty on her to disclose her association with S. The original Employment Tribunal, the EAT, the Court of Appeal and finally the Supreme Court all disagreed with her.

The Supreme Court felt that, because her job description required her to “advise, assist and inform the Governing Body in the fulfilment of its responsibilities” and “be accountable to the Governing Body” for the maintenance of pupil safety, the school’s decision to dismiss R fell within the range of reasonable responses available to the school.

If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small businesses – you can hire us for as much time as you need.

Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.

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