Heard the one about the office Christmas party?……..
Christmas party season is in full throttle, and tonight (Friday 20th December) will probably be the busiest of the lot. There will be headaches in the morning, and quite a few people slowly piecing together the remnants of their memory into a sudden pang of “Oh, I didn’t do that, did I?!” Which is fine if it just meant silly dancing in a Santa hat, but less fine if it involved more dodgy behaviour.
Now, the usual employment lawyer piece is to warn employers of the dangers of the office party being an extension of work and therefore being liable for the actions of employees. Potential harassment and discrimination claims can ensue (let’s face it, although it’s a cliché we’re usually talking about the male managers and more junior female staff). And there’s little you can do apart from asking staff to have fun but still behave, and then investigate incidents and discipline where appropriate.
Heard this already? Yes, I thought so.
For me, what’s missing here is challenging why the employer should be liable for this kind of behaviour.
The old legal position was that unauthorised actions of employees could not bind the employer. But this has now moved completely the other way, to one where in almost all circumstances the employer will be liable for any actions carried out at work – or an extension of work. This reflects general public policy of requiring employers to accept wider responsibilities.
That said, there is still a defence – certainly as far as sexual harassment is concerned – that the employer will not be liable if it has taken all reasonable steps to prevent harassment by its staff. These days, most decent-sized companies tick all the boxes as far as doing what they can to prevent sexual harassment: they have their rolling training programmes, usually paying a handsome fee to an external consultant in the process; rules on behaviour are implemented and updated; zero tolerance is widely known; etc.
Granted, many companies do not have this kind of robust prevention programme. But for those that do, the question arises as to what more can they put in place to prevent bad behaviour of staff? Not have the party at all, I suppose or ever hold any kind of social function. Boo-hoo to that. Sometimes, people behave badly and the only person who should be responsible for that is him/herself. But we very rarely, if ever, see this defence being used, and certainly not with any success. Why not?
I’ve got a few ideas about why not, but that will have to wait till after the holiday season. In the meantime, I’ve got an office Christmas party to go to this evening…… Merry Christmas! Call us in the New Year if it’s all gone wrong at your Office Christmas Party