Christmas Parties
DECEMBER 2009
PROBLEM
I threw a big after-work Christmas party for all of my staff. I thought it had been a roaring success but today I received a letter from an employee complaining about her manager’s behaviour towards her during the party. She says he was harassing her by making inappropriate comments. Can I be held responsible for this?
LAW
Harassment is a form of discrimination and is defined in legislation as being unwanted conduct that has the purpose or effect of violating a person’s dignity or creating an offensive, intimidating or hostile environment. Harassment on protected grounds (e.g. sex, race, age, disability, etc) is unlawful.
Generally speaking, an employer is responsible for the actions of their employees whilst they are at work. This is a concept known as “vicarious liability”. This means that if an employee harassed another employee in the course of their employment, their employer may be liable. However, it should be noted that a claim of harassment can also be brought directly against the harasser i.e. the manager.
Potentially, there is a statutory defence that an employer can raise if faced with such a claim. This applies where an employer can show that it took such steps as are reasonably practicable to prevent the harassment from occurring. Most commonly this is demonstrated by having a comprehensive anti-discrimination and harassment policy, regular equal opportunities training and generally making a concerted effort to stamp out discriminatory behaviour in the workplace.
ADVICE
In your situation, the alleged harassment took place during your Christmas party. The first question is therefore whether that party is “in the course of employment”. The general rule is that such events would be considered as being “work” for the purposes of discrimination law. The principle reason why employees were attending that event is because of their employment. This means that you are potentially liable for the behaviour of the manager.
In terms of what action you need to take now, the employee’s complaint should be treated as a formal grievance and therefore you need to undertake an investigation into the allegation. The ACAS Code of Practice on Disciplinary and Grievance will apply. If the grievance is upheld, it is also likely to be necessary to take disciplinary action against the harasser. However, the type of action will depend on the particular circumstances and again, the principles of the ACAS Code will apply to any disciplinary process. You should also bear in mind that your employee may treat herself as being constructively dismissed if you do not take her grievance seriously and/or do not take appropriate action against the perpetrator.
Should your employee go on to bring proceedings in the Employment Tribunal, you will be faced with having to defend a claim. It may be possible, depending on your employment practices, that you are able to rely on the statutory defence (see above).
CHECKLIST
- Remember that Christmas parties are an extension of employment. Whilst trying not to be a killjoy, consider reminding employees to act accordingly.
- During such functions, ensure that managers are alive to the possibility of inappropriate behaviour and that they are trained to deal with it before it gets out of hand.
- Introduce a comprehensive anti-discrimination and harassment policy and ensure that these principles are implemented within your organisation. This may help you to defend a subsequent discrimination or harassment claim.
- Always treat complaints of discrimination/harassment seriously - usually as a formal grievance. Remember the principles set out by the ACAS Code of Practice.
BEWARE
There is no cap on the amount of compensation that an Employment Tribunal can award to an employee who successfully brings a claim of discrimination or harassment. Damages will be awarded to compensate them for any injury to their feelings as well as for any financial losses (such as loss of earnings) that they may have suffered.
If you would like any further information about the issues raised in this article please contact Katee Dias or another member of Goodman Derrick LLPs employment department on 0207 404 0606.
This is a guide for general information and interest only and should not be relied upon as providing specific legal advice. |
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