Christmas parties are generally considered to be the most important work social of the year, and should be a celebratory occasion to end the year and reward staff for their hard work. However, it is commonly acknowledged that Christmas parties pose a hazard of inappropriate behaviour by employees, as they drink merrily and throw caution to the wind before the Christmas break.
Workplace socials all too often form the context for discrimination complaints. It is therefore important that employers are aware of the risks and have a procedure in place, to prevent inappropriate conduct and investigate such conduct if complaints arise. Even if allegations concern conduct which did not take place within the workplace or during work hours, employers can still be required to investigate the concerns if the alleged conduct impacts the working relationship.
Under section 109 of the Equality Act 2010, employers are liable for the discriminatory conduct of their employees, unless the employer can demonstrate that they took “all reasonable steps” to prevent an employee from doing the discriminatory conduct. The question of what steps are ‘reasonable’, and are therefore required, will depend on the facts of the case. For example, what is reasonably expected will vary depending on the size and resources of an employer. Employers should generally have policies in place to ensure that their employees know what amounts to discrimination and the consequences for discriminatory behaviour.
The Duty to Prevent Sexual Harassment
As of 26 October 2024, with the introduction of the Worker Protection Act and section 40a of the Equality Act, employers have a specific duty to take preventative measures against sexual harassment of their employees. Under section 40a of the Equality Act, employers must take reasonable steps to prevent sexual harassment of their employees during the course of their employment. As above, what steps are considered reasonable will vary from case to case.
Importantly, this newly specified duty on employers includes the duty to take reasonable steps to defend employees from sexual harassment by third parties, meaning individuals not employed by an employer. This could include clients and suppliers for example, or just members of the public.
If an employer breaches this duty to prevent sexual harassment, and an employee brings a related discrimination claim, an employment tribunal can increase any discrimination compensation by up to 25% depending on the facts of the case. Non-compliance with this obligation may therefore be very expensive for employers who are taken to tribunal.
Employers should be alert to the new duties introduced by section 40a of the Equality Act. Preventative steps to take during Christmas parties may include ensuring the venue is appropriate, ensuring there are designated members of staff to monitor the issue, timing the party so that it does not end too late when party goers are more likely to be more heavily intoxicated, and ensuring that employees are aware of safe and convenient routes home from the venue.
This blog was written by Yavnik Ganguly, Solicitor at didlaw.
