by Maeve Grffin, Solicitor at Fieldfisher
The annual office Christmas party is normally a time to relax and unwind. This year more than previous years has been difficult, and businesses will undoubtedly be looking forward to ringing in the New Year.
It goes without saying that the festive season will be very different this year. The Health (Amendment) Act 2020 has recently introduced fines of up to €500 for “event organisers” who breach Covid-19 regulations. This includes those who publicise, arrange, organise or manage events in breach of the regulations. Covid-19 restrictions means that ‘in person’ gatherings are an uncertainty and any Christmas celebrations will likely take place remotely.
While Christmas parties may take place remotely this year, it is still an extension of the workplace and the normal rules will apply.
Bullying & Harassment
Employers may be liable for incidents that occur at the Christmas party regardless of whether it takes place outside of the workplace or normal working hours.
This includes acts of bullying, harassment and sexual harassment. In a virtual world, this would likely manifest in the form of inappropriate comments, visual displays or gestures. If employees are participating in ‘Secret Santa’ they should ensure that their gifts are tasteful and not offensive.
Employers should take reasonable steps to prevent acts of bullying, harassment and sexual harassment or the victimisation of an employee who complains of bullying or harassment. At a minimum, this requires employers to show that they have clear dignity at work policies in place that are effectively communicated to all employees. Best practice is to regularly remind employees of the policies and to provide adequate training to ensure that they understand the standard of conduct expected from them and the consequences of a breach.
In addition, complaints relating to inappropriate behaviour at the Christmas party should be dealt with promptly under the relevant policy.
In McCamley v Dublin Bus EDA164, a Dublin Bus employee claimed that he had been harassed and victimised on the grounds of religion and race when disparaging and offensive comments were posted by a colleague on social media. This resulted in the harasser being disciplined. While the conduct constituted harassment under the Employment Equality Acts 1998-2015 (“the Act”), Dublin Bus was able to rely on the defence at section 14A(2) of the Act as it had a policy against harassment at work and appropriate action was taken against the harasser.
Health and Safety
Under the Safety, Health and Welfare at Work Act, 2005, employers have a duty to provide a safe place of work.
Any ‘in person’ gathering should be in strict adherence to government guidelines and social distancing rules.It should also be made clear to employees that any ‘impromptu drinks’ are not permitted as it may be in breach of Covid-19 restrictions and employers may be liable for incidents that occur at after parties if there is a sufficiently close connection with the employment. In the UK case, Bellman v Northampton Recruitment Limited an employer was liable for brain damage caused to an employee who was assaulted by the Managing Director at a Christmas after party.
In addition, employers should take a common sense approach when organising party activities and best practice is to carry out a risk assessment in advance. For example, if employees are participating in virtual party games there should be sufficient space and no trip hazards.
Not all publicity is good publicity! Inform employees that they should not post pictures or comments to social media that would adversely affect the company’s reputation or the privacy of colleagues. They should also be aware of the consequences of a breach.
If the organisation is planning on posting or circulating photos from the Christmas party, refer to relevant data protection policies to ensure that it is GDPR compliant.
Post Party Absences
If the Christmas party will take place on a workday, be clear about expectations relating to absences the next day. Let employees know if there is any leniency and ensure that everyone is on the same page. Employees should also be reminded about the organisation’s policy in relation to being under the influence of alcohol whilst at work.
Setting the parameters before the Christmas party will make it much easier to deal with any issues that arise as a result. Employers should review their policies to ensure that they are adequate and up to date. The policies should be effectively and regularly communicated to employees. Ideally, training would also be provided to ensure that employees understand the conduct expected from them and the consequences of a breach.
It will be easier to show that any disciplinary action following the Christmas party is reasonable if employees have been forewarned of the likely consequences.