The Operator - Harassment claims arising from staff social events

3 March 2011

Christmas Party Hangover?

Harassment claims arising from staff social events

Operators of licensed premises know better than most the risk of unpleasant incidents happening at work social events. At this time of year, with people returning to work after the Christmas holidays, many employers, in the licensed trade and otherwise, are having to deal with the consequences of some of their staff’s unfortunate actions at Christmas parties.

It is well established in employment law that staff socials such as Christmas parties, organised by employers, are seen as an extension of the workplace. That means that there is a strong possibility that employers will be held liable for any incidents of sexual harassment that take place during the party itself, even if held off the premises.

In a well publicised case, last year an employer was found liable for an unfair constructive dismissal, sex and pregnancy harassment claim arising out of a Christmas party. At the party a female employee was witnessed kissing another employee and then going to a hotel room with him. When that employee later became pregnant, gossip about who the child’s father might be spread like wildfire around the business.

As a result of the gossip, the pregnant employee resigned and sued her employer. The Employment Appeal Tribunal, the body to which appeals from employment tribunals are referred, decided that this was a clear case of sex and pregnancy related discrimination and harassment for which the employer was liable, on the basis that it stemmed from the staff Christmas party, and was connected with the employee’s pregnancy.

Discrimination law, recently consolidated into the new Equality Act 2010, is designed to ensure that employees’ dignity at work is preserved. For these purposes, the workplace will extend to a social event organised in connection with work or even drinks at the pub after work. Harassment involves unwanted conduct that has the purpose or effect of violating a person’s dignity or creating an offensive, intimidating or hostile environment for them. It is the alleged victim’s perception of the behaviour which is of paramount importance – not the intent of the perpetrator.

Employers have a defence to a claim for harassment if they took all “reasonable steps” to prevent such behaviour happening in the workplace. This would normally include having a clear policy with sexual harassment in place and ensuring that all managers are trained in respect of it. Furthermore, all employees should be made aware of the policy.

If you do receive a complaint it is very important that it is taken seriously. Even though malicious claims do occasionally happen, you should nonetheless take all grievances seriously and investigate as thoroughly as possible using (where available) an impartial and trained investigator. Consideration should be given to suspending the alleged bully or harasser on full pay whilst the investigation is being carried out. Where a complaint is upheld you need to consider very carefully what action you are going to take. Outcomes could include counselling, a formal warning, suspension (but only where your employment contracts allow for unpaid suspension), transfer of the guilty party or dismissal. Prevention, though, is always better than cure; we always recommend that employers train their staff on anti harassment policies to ensure that they can avail themselves of the “reasonable steps” defence should an employee later step out of line. If you need staff training or legal advice on this area of the law, please contact any member of the Kingsley Napley employment team.

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