Christmas Joy – or is that pain!?
Crazy how time flies, it’s nearly that time of year again, the John Lewis Ad is out there and the Paddington Bear at M&S has sold out online!
Ah, the joys of Christmas….
Office parties, you either love them or loathe them, but they remain a feature of most people’s employment. They range from a small social gathering in the pub after work at the end of a stressful day to the full-blown Christmas party where the alcohol flows freely all night.
Unfortunately, while many employees will use it to let their hair down completely harmlessly, the office party may represent trouble for a small minority. Employers need to be proactive in ensuring acceptable conduct as they could find themselves vicariously liable for the actions of their employees if those actions are deemed to have been committed “in the course of their employment”, whether or not they were done with the employer’s knowledge or approval.
We don’t want to be Bah Humbug at My HR Hub but we thought a few pointers may be useful as we normally will get a ‘spike’ in investigations in January post the Company Office Party.
- Be aware that you as an Employer can be held vicariously liable for the actions of your employees at office parties, if those actions are deemed to have been committed in the course of employment. Mmmm being generous with the drinks tab may not be such a good idea after all.
- Distinguish between those social events where there will probably be vicarious liability and social events that are unlikely to result in vicarious liability.
- In advance of office parties, take all reasonable steps to prevent employees from carrying out particular acts. If you have a good Handbook, ensure that all of your employees have read this and fully understand what is expected on and off site whilst ‘at work’.
- Provide a clear policy on the standards of behaviour expected at office parties and what kinds of behaviour are unacceptable.
- At the office party itself, put two or three managers in charge of monitoring the activities of staff and their intake of alcohol. This is a good idea and especially when gathering witness statements, you need a sober, reliable account of what has happened.
- Take steps to protect employees from third party harassment. Again, this will come back to how well your Company Handbook is communicated. Although most employees read this before they enter employment with you, most don’t really digest all of the information.
What is ‘vicarious liability’ and what does that mean for employers?
‘Vicarious liability refers to a situation where someone is held responsible for the actions or omissions of another person. In a workplace context, an employer can be liable for the acts or omissions of its employees, provided it can be shown that they took place in the course of their employment.’
Many employers are unaware that they can be liable for a range of actions committed by their employees in the course of their employment – these can include bullying and harassment, violent or discriminatory acts or even libel and breach of copyright.
It’s also possible to take action against an employer for the behaviour of third parties, such as clients and customers, provided these parties are deemed to be under the control of the employer.
The key question of any case of vicarious liability is whether the employee was acting in a personal capacity, or in the course of their employment. This can often be difficult to determine.
So what practical steps can you take to avoid vicarious liability for the acts of your employees?
The most important thing that you can do is to ensure that you have taken all reasonable steps to prevent such acts or omissions from occurring.
The key for you as Employers is therefore to take sufficient steps to minimise the risk of being held vicariously liable.
That employees can no longer expect not to face the consequences of occurrences at the office party of offensive jokes, fighting or other unacceptable behaviour.
You need to be proactive to prevent these types of incidents from happening, taking into account the fact that many employees are unconcerned about the consequences of their behaviour.
Throwing up, throwing food and throwing punches may be seen as perfectly acceptable by some employees, but this kind of behaviour needs to be carefully regulated.
In advance of office parties, provide clear written guidelines to members of staff setting out the standard of behaviour expected of them at such events.
A short policy will be useful for this purpose. (ask My HR Hub for more help on this), it can then be reiterated by email prior to each major social event, such as the Summer BBQ or the Christmas party.
The policy should highlight what behaviour is considered inappropriate and unacceptable and what the disciplinary penalties will be for breach of the rules, including possible summary dismissal if the offence is one of gross misconduct. Although it is probably unreasonable to expect employees at an office party to remain completely sober, the policy should state, in particular, that alcohol should be consumed in moderation and that staff should behave in an appropriate, mature and responsible manner.
Unacceptable behaviour that might result in a gross misconduct dismissal would include excessive drunkenness, the use of illegal drugs, unlawful or inappropriate harassment, violence, serious verbal abuse, or assault of either another employee or a third party such as a guest or a member of the waiting or bar staff.
Employees should also be warned that they are required to take steps to ensure that they are well within the legal limits if they are going to be driving home after an event.
In practice, the two most common forms of unacceptable behaviour are alcohol-induced aggressive behaviour and sexual harassment.
It is well known that alcohol loosens tongues and employees are more likely inadvertently to discuss secret company business with either fellow employees or outsiders when under its influence. Therefore, staff should be warned of the risks and consequences of this type of behaviour in the policy document.
At the event itself, try to ensure that two or three managers take responsibility for monitoring the activities of members of staff and their intake of alcohol. These managers should work with the hotel, pub or serving staff to ensure that employees who have had too much to drink are refused further service.
They must also be prepared to take employees to one side and warn them that they are behaving inappropriately or that they have had too much to drink so must not order any further alcohol. They might even have to be prepared to ask an employee to leave. Members of staff should be made aware in advance of the identity of the supervisory managers and advised that, if they experience any problems during the evening, they should report these to one of the relevant managers.
You will not have much of a defence if they have turned a blind eye to an employee’s becoming completely inebriated or indeed if they have even encouraged it by providing a free bar. It is very generous, but a more long term headache (as opposed to the hangover headache) if you are finding yourself in the middle of an investigation! A sensible option would be for you to limit the amount of free alcohol provided.
Enjoy your parties and put these few basic checks in place – it will protect you in the long run!
For more info on creating a Policy to protect you, speak to My HR Hub.