UK Update: Christmas parties and employment law – your annual (joyful) warning

Managing employees’ behaviour outside of the workplace can be a tricky matter – and one that often comes to the fore following Christmas parties.

It can be particularly difficult to ascertain the extent to which an employee’s behaviour at a social gathering impacts on their work and/or their employer’s reputation, and whether any disciplinary action can be fairly taken against an employee.

It can be even more delicate when an employee is expressing their views on religion or other beliefs. Such difficulties are illustrated by the recent case of London Borough of Hammersmith and Fulham v Keable .

In this case, the claimant described himself as an “anti-zionist” and made comments at a rally (attended in his own time) concerning anti-Semitism, Nazis and the Holocaust.

The claimant was filmed making such comments and the video was subsequently posted online (all without the claimant’s consent).

The remarks were perceived as controversial and offensive by many users on social media. The comments were brought to his employer’s attention by a counsellor.

The claimant was ultimately dismissed and raised a complaint of unfair dismissal.

On this occasion the ET found that the dismissal was procedurally and substantively unfair as the Claimant did not get a chance to comment on the allegation relied on for dismissal, namely what the average person would think of his remarks, and he also did not get an opportunity to comment on the alternative sanction of a warning.

Notwithstanding this decision, it is well established that employee behaviour during social activities outside of working hours can impact on the workplace, and/or an employer’s reputation, and fair disciplinary action can follow.

However, as the old saying goes, prevention is better than cure.

As staff return to the office and interact more, and as Christmas get-togethers begin in person rather than the virtual world, this is a good time to send out a general reminder of your policies and expectations – particularly because the potential for fallout may have been fuelled by the pandemic.

Many employees will be excited to be back socialising with their colleagues in person, maybe for the first time in almost two years. Others may be anxious to be out mixing with people.

Both factors may lead to more alcohol than usual being consumed, possibly turbocharging the normal fallouts that can arise from Christmas parties.

In addition, the Christmas party may be the first opportunity for colleagues to discuss their experience of the pandemic.

What might happen, for example, when someone greatly impacted by the pandemic with strong beliefs on the importance of vaccination discovers that their colleague they have to sit next to does not believe in vaccination?

Or how will that unvaccinated person react when their colleague tells them they no longer wish to be near them?

In addition, with COP26 recently taking place, this has resulted in many important issues on climate change which often generates strong views being raised and discussed.

Many of the views raised in such discussions could well be protected under the Equality Act 2010 leaving an employer grappling with the difficult issue of managing workplace fallouts and competing protected beliefs.

So, it’s time to issue those reminders if you haven’t already.

The types of policies you may wish to flag include equality, harassment, disciplinary, social media and drug and alcohol policies.

In addition, to avoid the pitfalls of the Keable case, if there are any behavioural issues arising from Christmas parties, it is key that the managers who handle the investigation and any subsequent disciplinary are trained to do so – this case illustrates how easy it can be to get the process wrong.

There may have been reasonable grounds for fair disciplinary action, but due and proper process needs to be followed to achieve that.

We regularly run training for managers on conducting a disciplinary process, so please get in touch if your business could benefit from a refresher on this issue.

By Mandy Laurie, Burness Paull LLP, Scotland, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact ukscotland@transatlanticlaw.com

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