Although we remain hopeful that we are heading for the first Christmas in several years that won’t be scuppered by COVID, employers need to be conscious of the risks when gathering their teams together for some much-deserved seasonal cheer, says the Employment Team at Rowberry Morris Solicitors.
Organisations should be cautious to not get too caught up in the festivities and remind their employees that the Christmas party is essentially just an extension of the workplace. It’s a work event so the same rules and responsibilities apply regardless of the time or location.
To avoid having to deal with any unnecessary employment issues afterwards, employers should ensure they are prepared in advance, otherwise what will follow is potential financial and reputational damage.
Even if the party takes place outside of the workplace and during non-working hours, employers can still be held liable for the actions of their employees.
It’s the potential liability for acts of discrimination or harassment that will be the prime concern when Christmas spirit can make employees get carried away and forget about work.
Most will of course only be interested in having a good time, but once inhibitions have been lifted when under the influence of alcohol, it can on occasion lead some to act in ways that they would not normally.
The most common form of discrimination or harassment witnessed at ‘works’ Christmas parties is sexual, but actions or language that target race, age and sexual orientation are also an issue.
Acts of drink-fuelled aggression towards colleagues or management are another likely threat and often occur when long-standing resentment or tensions bubble over during times of heavy alcohol consumption.
Such inappropriate behaviour during a company outing could lead to claims for potentially unlimited compensation against both the employer and the employee responsible. The time, cost and effort required to deal with any grievance and/or disciplinary issues arising from these types of incidents, should also not be underestimated.
Unfortunately, incidents such as these are all too frequent, and the new year is often a busy time for lawyers and employment tribunals, as employers seek to work through the unfortunate event(s) that occurred at their Christmas party.
To lessen the risk of this kind of thing occurring, employers are advised to take the following preventative measures:
- Invites everyone, including anyone on family-related leave, working remotely, on-site, from home or part-time, as well as those being absent through illness or injury, as not doing so, could result in claims of discrimination
- When employees are invited to bring partners, do not discriminate on the grounds of sexual orientation or assume all partners will be of the opposite sex
- Ensure that you have an equal opportunities/anti-harassment and anti-discrimination policy in place and that everyone is aware of what it includes
- Shortly before the Christmas party, remind employees of the existence of the policies and confirm that it applies equally to business events outside of the workplace and outside office hours
- Let employees enjoy themselves, but remind them that inappropriate behaviour will not be tolerated and could result in disciplinary action
- If hired entertainment performs an act with racist, sexist or offensive undertones, and the employer does not fulfil its duty to protect its employees from this unwanted conduct, it could be liable for harassment claims
- Consider limiting the availability at the bar, as it could be argued it is irresponsible to provide alcohol to staff, and it could make it even hard to defend any legal action resulting from an act carried out by a member of staff at a party that was aggravated by alcohol consumption
- Consider appointing a senior, responsible employee to stay sober, monitor behaviour and step in if necessary
It’s inevitable that gifts and invitations to Christmas festivities will be extended but employers must remain mindful about the possible tax implications and their liability under the Bribery Act 2010.
If an employer wishes to give Christmas gifts to their employees, they should make sure that those gifts are inclusive. For example, alcohol is not a suitable gift for all as there will be some who don’t drink for a whole manner of reasons, so it can be hugely insensitive or inappropriate.
Gifting cash should also be avoided as such gifts would still be taxable as earnings in the normal way (subject to tax and national insurance). Similarly, gift vouchers that are exchangeable for goods and services only are also taxable and as such must be reported on the employee’s P11D form.
Physical gifts such as consumables or products are usually preferable, and as long as less than £50 per person is spent, will not usually be taxable.
Employees can also be given gifts by third parties, resulting from the relationships they have built during their employment, and so long as the gift doesn’t exceed £250 in cost, it should not be taxable for the employee.
For businesses wanting to thank their clients for their business, a lunchtime meal at a reasonably priced restaurant may be the most sensible way to build important client relationships. But if opting for a physical gift it may be best to stick to offering useful branded stationery items such as calendars and pens to its clients so that their intention isn’t misconstrued.
This is because under the Bribery Act 2010 it is an offence to bribe another person or be bribed. Bribery is when one party dishonestly persuades another party to act in their favour by inducement, usually by offering money or another gift of value.
There are specific offences relating to bribing a foreign public official and commercial organisations failing to prevent bribery. All bribery offences can be committed in the UK or overseas and are effectively strict liability offences.
Commercial organisations have the possible defence of there being ‘adequate procedures’ in place to prevent bribery and corruption. The Ministry of Justice has published guidance about the policies and procedures that commercial organisations should place to prevent bribery and has set out six principles to underpin any policy.
Within these principles, all organisations, regardless of their size, need to give thorough training to employees so that they understand anti-bribery policies and know what is and isn’t acceptable behaviour. An anti-corruption code of conduct should also be published on an organisation’s website.
It should be understood that liability arises from both offering and receiving bribes. However, whilst the Bribery Act 2010 takes a tough stance on corruption its intent is not to prevent hospitality or gifting from occurring altogether. The key is to be reasonable and proportionate when it comes to hospitality and gifts, especially around Christmas time. After all, it is quite different wining and dining a customer at an exclusive resort in the sun in order to secure their business and toasting to another successful year over a pint in the local pub; one is quite clearly an act of bribery and as such, is illegal.
About the firm
Rowberry Morris Solicitors is a well-established firm of Solicitors with offices in Reading, Staines and Tadley providing professional and friendly services to individuals, families and businesses.