As Christmas party season is in full swing, this week we are taking a look back at our previous on misconduct as Christmas parties, which remains relevant as ever!
See also our related blog looking at other festive workplace issues.
MISCONDUCT AT CHRISTMAS PARTIES
It is long established that conduct for the purposes of disciplinary proceedings can extend to conduct that takes place outside of the workplace, as long as there is a connection to the employment relationship.
There would normally be such a connection where incidents occur at a work organised Christmas event (or other social event). Such events can effectively be an ‘extension of the workplace’ such that misconduct by employees can lead to disciplinary action. Therefore it can be fair to discipline an employee for conduct outside of the workplace Factors which may have a bearing on this may include:
- The timing, location and attendees at the relevant social event;
- Whether it is an “official” work event;
- The particular circumstances of the incident which occurred;
- The impact the incident may have in the workplace (i.e. fear or animosity among colleagues and the effect on working relationships); and
- The job role of the employee in question and whether the conduct has an impact on their role in the workplace.
The potential for incidents at social events is fairly obvious, and it is not uncommon for there to be issues of fighting and violence or inappropriate sexual behaviour. Below are some cases where employees have raised tribunal claims following dismissal for misconduct at work Christmas parties:
- Cordiner v Virgin Media Limited – Ms Cordiner was dismissed for her conduct at her work Christmas party, including racially and sexually offensive language and sexually harassing a male colleague. The dismissal was found to be fair.
- Westlake v ZSL London Zoo – two zookeepers got into a fight at the Christmas party and both were disciplined. One received a final written warning and one was dismissed. The dismissal was held to be unfair on the basis that the other zookeeper was not dismissed, despite there being no evidence of a material difference in their respective levels of culpability.
- Similarly, in Jones v MBNA, two colleagues who became involved in a scuffle at a Christmas party were disciplined but received different sanctions. In this case, however, it was considered fair that Mr Jones was dismissed when his colleague was not because it was found that Mr Jones had acted in a more serious manner in the circumstances.
- Gimson v Display by Design – in this case an employee was dismissed for punching a colleague while they were walking home from the Christmas party. The employment tribunal held that, although this took place after the party had ended, it was still sufficiently closely connected to work and the dismissal was fair.
From these examples, it can be seen that employer can be perfectly justified in taking disciplinary action in regards to incidents which occur at social events and employees need to be have to an acceptable standard. As always, it is important to consider all the facts and not dismiss employees without proper investigation and consideration, as would be the case with all misconduct.
There have also been more unusual cases related to Christmas parties which highlight other potential issues that can arise:
- Nixon v Ross Coates Solicitors – Ms Nixon was seen at the Christmas party kissing a colleague and thereafter going into a hotel room with him. A number of weeks later, she informed the managing director that she was pregnant. This news led to gossip and speculation around the office as to who was the father of the child. Ms Nixon was distressed by this, eventually resigning and claiming constructive dismissal as well as discrimination on grounds of sex/pregnancy maternity. These claims were successful (although the judgment in respect of the discrimination claim was successfully appealed by the employer at the EAT).
- Judge v Crown Leisure Limited – at the Christmas party, a manager (who had been drinking) promised an employee within two years, he would raise the employee’s salary to the same level as another employee, which would amount to a doubling in salary for Mr Judge. This did not happen and the employee made a claim for breach of contract. The court decided that the ‘promise’ at the Christmas party did not amount to an intention to create a contractual commitment. However, it did state that it would be possible that in different circumstances promises about promotion or salary increases, for example, could be taken to be contractual commitments. On a practical note, one might wonder whether a manager under the influence at a Christmas party would have the legal capacity to enter such a commitment. However, this case illustrates that such conversations are best avoided at work related social events.
While the aim is for everyone to have fun at Christmas events, employers should ensure that employees are advised of the standards of behaviour that are expected and they are reminded of the relevant policies and procedures which are in place which will should cover conduct at work related events (e.g. equal opportunities, disciplinary, anti-bullying & anti- harassment). If any issues do arise, ensure they are dealt with fairly and in accordance with procedure.
For assistance with Christmas party misconduct or any other employment law issues, contact Miller Samuel Hill Brown