Employers need to know their duty of care

An office Christmas party in full swing. Picture: JP

I was asked many times in the run-up to Christmas to share the most lurid, demoralising and embarrassing behaviour displayed at office Christmas parties (the aftermath of which I have had the “pleasure” of advising employers on cleaning up). Let’s be honest: a great deal of pleasure can often be had from someone else’s “misfortune” – especially if self-inflicted and alcohol-fuelled. It provides days’ worth of office gossip.

You might have seen a colleague arrive at the party in a haze of glitter and perfume having spent all afternoon (most likely in the office toilets) getting ready, promptly knocking back shot after shot (shame to waste an open bar), before outrageous flirting with the boss (who knew he was so good-looking out of his suit?) and an angry showdown with the teetotal receptionist (the one who never passed on messages). At the end of the night, the colleague in question can usually be found, passed out, under a table, but not before the evening’s celebrations are immortalised on Facebook.

Sadly, far worse has taken place – usually involving an element of unhealthy, unwelcome familiarity between colleagues. Prevention is better than cure, but like the hangover the morning after the night before, high jinks are accepted as par for the course. Harmless fun, isn’t it? It takes something serious, like an allegation of sexual harassment made post-festivities, for the employer to realise that perhaps it could have done more to safeguard itself and its employees. The Christmas party is, after all, an extension of the workplace and employers are liable for the harm that befalls their employees.

If an employer has waited until Christmas to remind employees of what is and isn’t acceptable behaviour at work, it’s too late. The festivities are fuel to a fire that’s been smouldering all year long.

Most workplaces are a hotbed of rivalries and romances but also where close bonds are forged in the face of adversity. If you don’t recognise this in your workplace, watch sitcom Trollied about fictional supermarket Valco. In my student years, I worked in a supermarket, which shall remain nameless, and Trollied captures what goes on behind the deli counter, in the warehouse, in the manager’s office and between colleagues.

When someone has been in the workplace long enough, he or she makes as many work friends as significant as non-work friends and work becomes a sanctuary from the stresses of home. As a consequence, a great deal of personal business is happening during working hours, more than checking mobile phones on the shopfloor or posting on Facebook. It includes those tricky “people problems” that can prove difficult to resolve because the line between personal and professional has blurred.

One person’s harmless flirtation is another’s sexual harassment. Unsurprisingly, I have regularly advised on this issue in the last few weeks and many feel flirting and sexual harassment is not the same thing. Fans of Trollied will know two of its main characters, Colin and Lisa, were willing participants in some serious flirting before the resultant relationship. It was not unwanted conduct of a sexual nature and would not amount to sexual harassment under the Equality Act 2010.

However, if it had been unwanted conduct for either of them and it had the purpose or effect of either violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offending environment (and it could have done all of this and more) it would constitute sexual harassment. Whether it has this effect will depend, in part, on the individual’s perception, so the perpetrator’s or employer’s perception is of little relevance.

Conduct of a sexual nature can include physical, verbal and non-verbal sexual advances, touching and sexual jokes. This may not be obvious to everyone, either because they are unaware of the law or they have a different moral code. It is in the employer’s interests to educate its workforce.

For instance, a simple invitation from one colleague to another to have a drink after work in itself is unlikely to be sexual harassment – but what if during the course of the year the colleague repeatedly asks the other out and tries to “woo” him or her with compliments, unwanted gifts and winks until the office Christmas party when they finally make a move under the mistletoe? What if, when rebuffed, they turn nasty, feeling they had been led on? Would the employee in question see anything wrong with their behaviour? A wise employer would have a policy of reminding employees of their responsibilities and expected behaviours all year round.

After all, an employee is not just for Christmas – and the summer outing will be upon us before we know it.

• Donna Reynolds is an employment specialist and partner with CCW Business Lawyers: www.ccwlegal.co.uk