“Mr T” joined French management consultancy Cubik Partners in February 2011, where he worked until his dismissal in March 2015. The reason for his dismissal was stated to be “professional incompetence”, which, on interrogation, was said to encompass his “critical behaviour” and refusal to adhere to the company’s “fun” values or participate in team-building activities.

During the dispute, it was said these “fun values” included what Mr T viewed as obligatory social events with “excessive alcoholism” and practices of “promiscuity, bullying and incitement to various excesses”. The court backed Mr T’s entitlement to “freedom of expression” and ruled that refusing to participate in activities he didn’t agree with was a manifestation of that freedom. Ultimately, the court held his employer could not dismiss him for reluctance to be what the employer regarded as “fun”.

So, are “no-fun” employees at risk in the UK (especially at a time of festive get-togethers), or would our legal system similarly provide protection? Section 98 of the Employment Rights Act 1996 governs how an employment tribunal in the UK should consider the question of whether a dismissal is fair. To be fair, an employer must show: (i) the reason for the dismissal (or principal reason if there is more than one); (ii) that it is a potentially fair reason for dismissal; and (iii) that the employer acted reasonably in dismissing the employee for that reason. There are five potentially fair reasons for dismissal: the capability or qualifications of an employee the conduct of the employee; redundancy; statutory restrictions; or “some other substantial reason” (SOSR).

If a similar case occurred in our jurisdiction, an employer would likely be relying on “SOSR” as their reason for dismissal. A broad range of circumstances may fall within this category. The employer might seek to argue that by being overly critical and not engaging in team-building activities (particularly if this is integral to company culture), there has been a “breakdown in working relations”.

This is a commonly-cited SOSR reason and has been deployed in cases where the attitude or behaviour of one employee has caused tension amongst the workforce on the basis that interpersonal issues can affect morale and productivity. However, employers who seek to use this as a reason for dismissal are expected to take steps to try to alleviate the situation before they dismiss, to show they acted reasonably. What is reasonable in this context (or any context) depends on the circumstances.

As far as “failing to be fun” goes, employers typically cannot force employees to participate in work social events and dismissal on these grounds is likely to be unfair. If it is important to company culture, employers may wish to explore whether there is a reason the employee in question does not feel able to participate in team building or social events and what they might be able to do to support them in other ways. Employers should be mindful that these kinds of tensions might arise in the workplace more noticeably as we approach the festive party season.

Particular care needs to be exercised if the reason why a person doesn’t commit to taking part in an event, or activity, or has a different outlook on what is fun, is connected either with their health (should the health condition amount to a disability) or the individual’s religion or beliefs, all of which can potentially be protected under the Equality Act. In addition, poor or unwanted reactions by employees to non-participants need to be discouraged if offence can be caused, for the employer will almost always be liable for the actions of employees who misbehave towards one another.

Bruce Caldow is a partner, Harper Macleod

The lessons learned by Cubik in France and the experience of Mr T need not be seen as a call to cancel festive events or ban fun in the workplace. Instead, progressive employers should consider how inclusive their events, culture and overall workplace can be, when planning and deciding on how to celebrate, reward or allow people to relax in each other’s company. This remains vital to well-functioning team environments and workplaces as a whole.

Bruce Caldow is a partner and Claire Fowler a trainee, Harper Macleod

Obligatory social events prove no fun for ‘Mr T’ or his employers - Bruce Caldow and Claire Fowler