Don’t let Darren and his chums ruin the festive fun

With the office Christmas party season in full swing, it seems almost churlish to point out that at countless, hastily convened, morning-after meetings across the country, Darren from warehouse supplies will find himself unexpectedly mouthing the words ‘it was just a bit of banter’, or worse, ‘well, she never said it was racist at the time’.

Despite the best endeavours of HR professionals throughout the year to instil fear and caution into employees about the toxic mix of alcohol, adrenalin, and photocopier machines, it seems the message remains impervious to Darren and his chums.

The first click-fizz of a lager can in a work setting appears to send his neuroreceptors haywire, making him confuse a wan smile by Janice from accounts with an invitation to drop his trousers.

Meanwhile Shane from sales is taking a swing at Declan from operations, while Tyler from marketing is in the boardroom, lighting a joint the size of a baseball bat.

While everyone else is looking forward to letting their hair down with workmates and toasting the festive season, those with responsibility for health and safety and employment legislation may already be checking hearing schedules at the local employment tribunal office for early January.

Some of the most clichéd Christmas party antics, such as asking a colleague for a kiss under the mistletoe can lead to sex discrimination or sexual harassment claims under the Equality Act 2010.

Lude jokes, banter or mild flirtation can cause offence or discomfort and employers should ensure staff and their guests are aware of the boundaries. Suggestive selfies, risqué photos circulated on social media and sexually suggestive Secret Santa gifts can result in legal tussles.

It’s not just the behaviour of staff at the party, they should worry about. Workers have brought cases against employers for parties held outside of office hours, in nightclubs after the party has ended and even in taxis on their way home.

For any employer organising a Christmas bash for your hard-working staff, there is little that can be taken for granted. Actions that seem harmless or unintentional can still result in a successful claim. Here are some examples of cases to ponder before you start to order in the streamers and cases of Prosecco.

1. Gimson v Display by Design Ltd 2012:  Gimson, a machine operator, was walking home with workmates after a staff Christmas party when a disagreement broke out and he punched a colleague in the face. His employer instigated disciplinary action and, after an investigation, found there was no provocation by the other worker and Gimson was sacked for gross misconduct. His appeal was rejected at a subsequent employment tribunal.
2. Bhara v Ikea, 2010: Bhara was a well-regarded employee, involved in organising the company’s Christmas party. He didn’t start drinking until 10pm, when he finished his hosting duties and, at 11.30pm, he was outside smoking when he warned a colleague, who was supposed to work the next day, not to drink too much. The colleague reacted angrily, and a ‘tussle’ broke out. In an investigation by the firm, both men sought to play down the ‘wrestling match’, which Bhara described as a ‘play fight’. The colleague said it was just ‘mates having a laugh’. Ikea dismissed Bhara and their decision was upheld when he appealed against the decision.
3. Bellman v Northampton Recruitment, 2011. Following a Christmas party, company director John Major and others carried on drinking at a hotel bar. At around 3am, the director punched Clive Bellman, a manager, twice in the face, causing him to fall and hit his head on a marble floor.  The manager suffered a serious brain injury and decided to pursue the company, rather than the individual who assaulted him. The High Court held the company was not liable for the actions of one of its directors, because he was not ‘acting in the course, or scope of his employment’, to make the company vicariously liable. The drinking session was an independent, voluntary, and discreet, early-hours drinking session of a different nature to the Christmas party and unconnected with the company’s business, it found.
4. Livesey v. Parker Merchanting Ltd, 2004: Sarah Livesey launched a case against her employer after being sexually harassed in a taxi by a colleague after a Christmas party. The case was dismissed because, the tribunal said, Ms Livesey had not raised the issue with senior staff prior to bringing the case.
5. MBNA v Jones and Battersby, 2015: The bank held its Christmas party at Chester Racecourse, where Mark Jones had an argument with Andrew Battersby. Both employees had been drinking before and during the event. There was an argument between them, resulting in Battersby kneeing Jones in the leg and Jones licking Battersby’s face. Later, having seen Jones with his sister, Battersby kneed Jones again and, this time, Jones punched Battersby in the face. Afterwards, Battersby sent Jones text messages, including threats to ‘rip his f***ing head off’. MBNA dismissed Jones for gross misconduct, while Battersby received a final written warning. The bank accepted Battersby had kneed Jones without force or aggression and that it was not substantive provocation for Jones to punch him. Jones brought a claim for unfair dismissal and an employment tribunal found his dismissal to have been unfair, because there was a disparity of treatment between him and Battersby. MBNA appealed the decision and won.