Whilst it seems that, for the first Christmas in years, COVID won’t be putting a dampener on the celebrations, employers should still try to be a little cautious when looking to bring their teams back together to delight in some well-earned seasonal cheer.

Social distancing may no longer be a requirement, but those who choose to get swept up in the spirit of the occasion whilst at their work Christmas party would be best reminded that such an event is essentially just an extension of the workplace and as such, and if they’re not careful, their actions could come back to haunt them like the ghost of Christmas past. 

To prevent there being any unnecessary employment issues arising from a spot festive overindulgence, employers must understand the risks and prepare themselves in advance.

Christmas parties

Even with parties taking place away from the workplace and outside of normal office hours, an employer could still be held liable for the actions of its employees during a work-organised gathering.

The potential liability for acts of discrimination or harassment will be the primary concern for most, but they can easily happen when employees get carried away with the joy of the occasion.

Whilst most will only be interested in having a good time, once alcohol is introduced into the mix, inhibitions may be lowered leading some people to behave in a manner that they wouldn’t normally when with work colleagues. 

The most likely act of discrimination or harassment that occurs at a ‘works’ Christmas party is sexual, but it is not limited to that. There are a number of other prohibited grounds for discrimination or harassment that could arise, including race, age and sexual orientation.

Drink-fuelled aggression directed at colleagues or management is another common example of inappropriate behaviour, and it often occurs when long-standing stress, resentment or tensions bubble over.

This kind of behaviour could potentially lead to claims for unlimited compensation against both the employer and the employee responsible, and the time, effort, and cost required to deal with these types of grievances should never be underestimated. 

Discrimination or harassment incidents are all too common over the festive period, and the new year is often an extremely busy time for lawyers and employment tribunals. As such it’s prudent to be proactive when it comes to prevention, and employers are well advised to take the following steps before their work’s Christmas party comes around:

• Invites need to go to everyone in the business, including those on family-related leave, who work from home, are absent through illness or injury, or work part-time and are not at work on that particular day. Not doing so might result in claims of discrimination.
• When employees are invited to bring their partners, there must be discrimination or assumption with regard to sexual orientation.
• Ensure that you have an equal opportunities/anti-harassment and anti-discrimination policy in place and that everyone is aware of what it includes.
• Shortly before the Christmas party, remind employees of the existence of the policies and confirm that it applies to business events outside of the workplace or outside normal working hours.
• Remind employees that inappropriate behaviour will not be tolerated and could result in disciplinary action.
• Be cautious not to hire any entertainers that may tell racist, sexist or offensive jokes. If such potentially offensive acts do perform and the employer does not fulfil its duty to protect employees from this unwanted conduct, it could be liable for harassment claims.
• Consider placing limits on the bar spend, as it could be argued it is irresponsible to provide free alcohol to staff. Doing so could make it hard to defend any legal action resulting from an act carried out by a member of staff aggravated by alcohol consumption.
• Consider appointing a senior, responsible employee to stay sober, monitor behaviour.

Christmas gifts 

Employers must be mindful of both the potential tax implications and also their liability under the Bribery Act 2010 when it comes to the matter of gifting and socialising at Christmas.

Should employers wish to give gifts to their employees, they should make sure that those gifts are inclusive. For example, alcohol is not an appropriate gift for all as there will be some who don’t drink for a whole manner of reasons, so it can be hugely insensitive and unsuitable.  

Gifting cash is also not ideal, as such gifts will still be taxable as earnings in the normal way (subject to tax and national insurance). Similarly, a gift voucher that is exchangeable for goods and services is also taxable and as such must be reported. 

Physical consumables or product gifts are a far more attractive proposition because as long as less than £50 per person is spent, it will not usually be taxable. 

Should an external third party or supplier wish to gift one of your employees due to their personal working relationship, so long as that gift doesn’t exceed £250 in cost, it won’t be taxable.

For businesses wanting to thank their clients for their business, taking them for lunch at a reasonably priced restaurant may be the most sensible way forward. But if opting for a physical gift it may be best to stick to offering useful branded stationery items such as calendars and pens to its clients so that their intention isn’t misconstrued. 

This is because under the Bribery Act 2010 it is an offence to bribe another person or be bribed. Bribery is when one party dishonestly persuades another party to act in their favour by inducement, usually by offering money or a valuable gift.  

There are specific offences relating to bribing a foreign public official and commercial organisations failing to prevent bribery. All bribery offences can be committed in the UK or overseas and are effectively strict liability offences. 

Commercial organisations can rely on the defence of having ‘adequate procedures’ in place to prevent bribery and corruption. The Ministry of Justice has issued guidance about the policies and procedures that commercial organisations can put into place and set out six principles to underpin any policy. All organisations, irrespective of their size, should have policies in place and employees should receive training on what is and isn’t acceptable when it comes to their behaviour. An anti-corruption code of conduct should also be made available on the organisation’s website and policies should be reviewed regularly to ensure they are fit for purpose.

It should be understood that liability arises from both offering and receiving bribes. However, whilst the Bribery Act 2010 takes a tough stance on corruption it is not designed to prevent hospitality or gifting from occurring altogether. The importance here is being reasonable and proportionate when it comes to hospitality and gifts, especially around Christmas time. After all, it is quite different jetting a customer away to an exclusive resort in an attempt to secure their business, or simply toasting to another successful year of partnership over a pint in the local pub. One is an act of bribery and as such, is considered to be illegal.

This article is written by the Employment Team at Rowberry Morris Solicitors, a well-established firm of Solicitors with offices in Reading, Staines and Tadley providing professional and friendly services to individuals, families and businesses.

Photo by Kelsey Chance on Unsplash.