The following article will appear on my website www.charlesprice.net and has been partly written by Louise Westgate of Hugh James solicitors.
Employers Need Not Fear a Nightmare at Christmas
Charles Price, Employment Law Specialist and Barrister with No5 Chambers explains how employers can avoid the Christmas pitfalls.
No employer wants to be seen as Scrooge at Christmas but even the most Epicurean of bosses must be aware that there may be a price to pay for allowing employees to over indulge themselves even outside of work hours. This was most evident when in a recent case, an employer was ordered to pay compensation to an employee who had been dismissed for, fighting and abusing a senior manager after a heavy drinking session at an after hours office party. The employer’s heinous crime was to pay for a tab at a party which took place after working hours. The Tribunal deemed dismissal to be an unreasonably harsh sanction in the circumstances and therefore unfair.
It is not only the employees who do things at Christmas parties they might live to regret later. Employers should be wary of making promises of gargantuan pay rises made after one too many sherries, just in case the eager employer seeks to enforce such an agreement on the first day back in the office.
At alcohol fuelled parties, the chances of employees complaining that they have been harassed are more likely. ‘The Ghost of Christmas Past’ really could return to haunt the complacent employer as new law means that they can be held accountable for the acts of their employees for over four years in the past. For a harassment claim to succeed under the Protection from Harassment Act 1997 it is necessary to show that the behaviour in question was merely likely to, ‘alarm or cause the claimant distress.’ Employers should be aware that this test looks as if it will not be difficult to satisfy. In the recently well publicised case, involving a woman, Ms Green, who sued her employers under the same law, part of her eventually successful claim, was that her work colleagues ‘went silent on her’ and ‘blew raspberries’ at her when she walked past. The employer in that case had to pay £800,000 in compensation after Mrs Green suffered 2 mental breakdowns as a result of the bullying.
Bosses should be aware that employees who are bullied or harassed in the workplace may also bring a number of claims against their employer for: personal injury, breach of contract and under discrimination legislation.
In general, the days of the boss permitting ‘Bob Scratchit’ limited time to leave the office at Christmas are thankfully behind us. Employers are generally lenient with those returning to work after a Christmas lunch but the company position on this should be made clear to all, if employees are to know their boundaries and the Company’s disciplinary policies are not to be dusted off. Furthermore, employers should make sure that all faiths are considered. A Muslim worker successfully argued at an employment tribunal that he had been treated less favourably on racial grounds when he was forbidden to have a day’s holiday to celebrate the festival of Eid. The fact that it was the busiest season for the company involved and the taking of all holidays had been cancelled, was rightfully deemed irrelevant.
It is clear that employers are in a precarious position at Christmas but they should not necessarily dread what others see as, the ‘season to be jolly’. By exercising firm but fair control employers can avoid the festive pitfalls. Employers are advised to introduce training in what constitutes harassment bearing in mind the law on; age, religion, race, disability and sexual orientation. Policies dealing with office bullies and grievances should be put in place and all complaints should be fully investigated. Lastly, sensible drinking should be encouraged bar tabs limited if ‘jingle bells are not to turn into alarm bells’.
By Charles Price , barrister
Birmingham – Bristol - London