Christine Quinn, Legal Island and Seamus McGranaghan, O'Reilly Stewart Solicitors, are BACK to discuss your employment law queries live in our webinar series, “Employment Law at 11”. This month they discuss:

1. The GB Worker Protection Act:

NI employment legislation is increasingly diverging from GB legislation and blanket coverage of English and Welsh law in HR publications makes it difficult to weed out what does and doesn’t apply here in NI. Does third party liability already apply here? Exactly what is the legal position for NI employers? Seamus explains the new GB Act and what you need to know.

2. Winter is coming:

a.) Addressing challenging weather scenarios when they impact your workforce.
b.) Get ready to expertly manage your company's Christmas celebrations, ensuring a memorable and trouble-free experience for all.

Get your HR team around the computer and use the webinars as monthly group learning opportunities.

Recording:

Transcript:

Christine:  Good morning, everyone, and welcome to "Employment Law at 11", sponsored by MCS Group. My name is Christine Quinn. I'm a Knowledge Partner here at Legal-Island. For those of you who don't know me, I'm a qualified employment solicitor, not practising at the moment, thoroughly enjoying my time at Legal-Island. I'm joined as usual by Seamus McGranaghan, Director and Employment Law Expert at O'Reilly Stewart Solicitors.

So, what are we talking about today? First thing we're talking about is the Worker Protection Act. It's a GB employment act. So, Northern Ireland legislation is increasingly diverging from GB legislation, and in HR press and publications, we get blanket coverage of the English and Welsh changes. So, it starts to get a little bit confusing. Does it apply here? Doesn't it apply here?

So, today we're going to be talking about third-party liability, how it applies in Northern Ireland. That was some of the headlines from the Worker Protection Act. Exactly what is the position here in Northern Ireland? We'll be explaining that.

Secondly, we're going to be talking about the winter. Winter is coming. Very cold here today in Belfast. So, we're going to be looking at the challenging weather scenarios and how they could impact your workforce and how to address that.

And then, of course, it's Christmas party season, so we are going to help you through that and ensure that it's memorable celebrations for all the right reasons.

So, thanks as always to our sponsors, MCS Group. MCS help people find careers that match their skillsets perfectly, as well as supporting employers to build high-performing businesses by connecting them with the most talented candidates in the market. If you're interested in finding out how MCS can help you, head to www.mcsgroup.jobs.

So, as always, we're going to kick off with some polls. It'd be great if you guys could get involved and click on the appropriate answer. So, Maria, if you could put the first poll up for us there. Are you having a Christmas party this year? So, you can select "Yes, we can't wait to hit the dance floor" or "No, money is tight at the moment".

It was Legal-Island's Christmas party yesterday. It was all very civilised. I can confirm HR have not been in touch with me this morning.

So, let's see. Sixty-nine per cent are going for the work Christmas party. I think it was a little bit lower this time last year. There was still a wee bit of a higher reluctance for the Christmas parties last year, wasn't there, Seamus? But 69% is a good number, isn't it?

Seamus:  Yeah, absolutely. I sort of was always concerned in and around with the working from home and maybe disengagement from the office, whether people would decide maybe not to go to the Christmas party. It's hard to tell from the poll, but maybe for those working from home, it's a good opportunity for people to link back up and meet each other and have a good night's fun.

Christine:  Yeah. Brilliant. Thank you very much.

So, second question, Maria, if you pop that up. What is the HSE's, the Health and Safety Executive's, advice on minimum temperature at work? So, you can select "There is no minimum temperature. It's a myth that there is", or "16 degrees, but it can be lower in some workplaces", or "Between 18 and 22 degrees centigrade. That's the recommended home heating range, so it's the same for workplaces". What do you think?

I remember when my school heating broke down we were all heading off to Strasbourg when we were teenagers for human rights violations. But is that actually the case that there is a temperature?

So 59% are going with the 16 degrees centigrade. You're all very wise. It is 16 degrees, but it can be as low as 13 if you're doing a more manual job. So, well done, everyone.

Seamus, you do always get those grumbles in the workplace and people are saying, "This is inhumane treatment to be in this cold", don't you?

Seamus:  Yeah, we might have had a few this week in my own office about that. It's always that time of year where you get the heat blasting in the morning and then the windows open in the afternoon to try and cool the place down.

But yeah, it's one of those classic ones that causes friction sometimes in the office over the heating and the temperature and all the rest. But ideally, you want to be sort of looking at what your environment is that you're working in initially before sort of setting a marker down to say what the temperature should be. And there are always people that feel the cold more than others.

Christine:  Yeah. Thanks very much. So, third question then, Maria. Thank you. Regarding third-party liability for sexual harassment, Northern Ireland is . . .? Are we behind GB. We've no government, so what do you expect? Or are we ahead of GB? We've had the law in place for years.

So let's see what you guys think of this one. Seventy per cent saying we've no government, what do you expect, and we are behind GB. Seamus, do you want to let everyone know if they're right or not?

Seamus:  The sceptics among everyone there, the automatic view that we are behind the door when it comes to all these things. But this is one that we're actually a little bit further on than GB and GB's maybe playing catch-up to us on this one.

So, it is a strange turn of events, but I can understand why people would be maybe thinking that it's one that we are behind on, given that most of our employment legislation we follow through after it's been brought in, in GB.

And not always the same. People will be aware that there is divergence between the law in Northern Ireland when it comes to employment rights and protections and that in GB itself. So, we'll maybe get into that a bit further shortly.

Christine:  Yeah, brilliant. Thanks for that, Seamus.

I'm really glad I picked this topic, then, for that reason, because I think it's becoming increasingly confusing. Especially it was a big fanfare of an announcement over the Worker Protection Act, and there was a lot of debate about third-party liability coming in, in GB.

Now, it's actually being sidestepped. The government kind of chickened out at the last minute on that one. And so, third-party liability doesn't apply for sexual harassment in GB at all. It was kind of one of the reasons they were trying to push it through.

But Seamus, do you want to give us a wee bit of background on the Worker Protection Act then?

Seamus:  Yeah, absolutely. The basics here that we're looking at are that we do have, as I said, a divergence here in Northern Ireland. And everyone will be aware that there are significant differences at times. Most of the time, the legislation is . . . I mean, you could almost lift sometimes the Employment Rights Act and the Employment Rights Order and think that they were the same, but there are subtle changes. There are differences, particularly whenever you get down into the detail of the legislation.

So, we do have diversions. It's usually similar, but not always the same. Maybe that's the best way of putting it.

But the big one for the topic this morning would really be that in England they have the Equality Act of 2010, which we don't have. We have all our individual pieces of legislation around discrimination and equality.

So, we have FETO, our Fair Employment and Treatment Northern Ireland Order, we have our Race Relations Order, our Disability Discrimination Act. They're just a few of the separate pieces of legislation.

And if you're ever sort of doing a comparison, I know our friends over at Lewis Silkin have a great comparative table that Legal-Island have mentioned before, where you can look to see the differences I think in England and Wales and GB and what they are here.

You can pick up those sort of nuanced differences, but it's quite a large one in and around the Equality Act. And sometimes whenever I'm dealing with colleagues from England, they won't realise at all that there's any difference in Northern Ireland.

There's an automatic assumption, particularly if you're doing compromise agreement work or if you're doing maybe company work as well. You'll see when documents come through that they'll always refer to the Equality Act. And really, what that did was it bound all of the different types of equality legislation together into one act. And of course, as I say, we don't have that here. And whether I say we don't have the benefit of it or not is controversial. So, I'm not saying that.

But the main reason there is because employment law in GB is not devolved from Westminster, where for us here in Northern Ireland, is a devolved matter for our assembly to deal with. And that has been the position from 1998, or slightly sooner, I think.

And then we have all the confusion that has arisen around Brexit. We talked about the withdrawal bill, and the retained laws, and all those sorts of things that were really causing a lot of confusion.

So, there are differences there and there has been a difference between the position on sexual harassment when it comes to NI and GB, and we've had that really from 2008.

But if we want to maybe just look at what we've had in GB, what they've brought in, initially there was a bill brought in, the Worker Protection Bill. Then ultimately, that has come in to a full piece of legislation that has now received Royal Assent, and that's known as the Worker Protection (Amendment of Equality Act 2010) Act 2023.

Now, that has got Royal Assent. It will not come in to effect until 26 November 2024. So, there is a bit of a lead-in period. And I did see some commentary about it, but I didn't see a massive amount of commentary for such an important piece of legislation. And I think just as we turn the corner into the new year, we might see the developments pushing that direction further.

But the Act, the intention there is that it amends the 2010 Act to better protect employees from workplace harassment and sexual harassment. And there's a clear sort of shift within the legislation where you have a movement from a focus on redress to prevention. It's this aspect that there is a clear duty that is put on employers to prevent sexual harassment happening in the workplace.

So, the legislation puts an onus and a duty on the employer to do that, and the employer must take reasonable steps to prevent sexual harassment of employees during their employment. So, that is what the legislation says.

And essentially, what that means is that the employer will be liable for harassment of employees in certain situations, and it introduces this positive duty on employers to prevent sexual harassment from taking place.

It does seem that it was quite controversial whenever it was being debated through the bill. As you mentioned, it has been watered down significantly, even from the point that it had originally said that the employer must take all reasonable steps. They removed the word "all" and reduced that just to "reasonable steps".

 So, there's this now positive duty on the employer to ensure that harassment isn't taking place, which we have had here for a long time. If you look at any of the guidance from the Equality Commission, Labour Relations Agency, you'll see that it certainly has been the position here from 2008.

 And I'm just thinking back to our Annual Review. My topic at the Annual Review was about workplace banter and all the forms of harassment that can arise from that. But in particular, we had looked at the time at specific guidance that had come from the Equality Commission and the Labour Relations Agency, and really about the whole process around the joined-up position for employers to ensure that harassment doesn't take place in the workplace. So, it is certainly, I think, an important piece of legislation.

 Two things that it does set out. If there's a failure by employers . . . There are two points really to denote from the legislation. One is that in England and Wales, the Equality and Human Rights Commission can take enforcement of steps against the employer. So, if there's a finding that the employer has failed in its duty, you can have the Equality and Human Rights Commission step in.

 And then in addition to that, there is discussion in the legislation . . . and I'm trying to look back at some of the parliamentary debates and discussions about it as well. But there is this aspect where there is the ability for a tribunal to look to uplift compensation that can be paid, and they can increase the compensation up to as much as 25%.

Now, clearly what it does say is that the compensation uplift must reflect the extent of the failure by the employer, but it can't be any more than 25%.

And just some of the commentary that I was reading, I thought this was interesting. They were saying that in GB, the average award for sex discrimination in 2022 was £37,607. So, another quarter on that is a significant amount.

I suppose from a legal practice perspective, if you're advising in relation to that, it's an important step that comes from the legislation.

But Christine, I thought it might be helpful to have a look around what the reasonable steps might be that the employer would have to take. And I do think that for us, as I say, the position in Northern Ireland is that we have had the benefit of this from an employer perspective.

I think that we have been very clear through guidance pieces, through government notifications, and through what the Equality Commission and the Labour Relations Agency have had to say, which is that Northern Ireland employers are liable for their third-party non-employee sexual harassment employees.

Now, that only applies in Northern Ireland to sexual harassment. It doesn't apply to any other forms of harassment. And the Equality Commission guidance does say that employers are liable for repeated harassment of an employee by third parties. And that could be their clients, their customers, their suppliers, anyone else that's coming into the business.

And particularly around that aspect that if the employer fails to take reasonable, practicable steps, is the threshold here, to prevent harassment from happening. So, the bar is higher here. For once, we are setting the bar. We're leading the way in relation to this.

And I think that if you look at some of our tribunal decisions, you can see where the tribunal have taken the position here in Northern Ireland very seriously. And certainly they'll look at the case law in England, but our particular case law is helpful for anyone that's playing catch-up at this point to it.

But maybe just to talk about what those reasonable steps might look like and what they might be. We know that a good starting point is to have a policy and procedure in place.

Christine:  Of course. Yeah.

Seamus:  You'll be looking to have your anti-harassment, your bullying policy, your equal opportunities policies and procedures in place.

But the recent case law has developed in relation to that, and we know that it's just not straightforward or as easy for employers to say, "Well, look, I have policy. There's my defence. It's not my fault if an employee harasses another employee, or if there are third-party aspects happening in relation to it".

So, the idea is that you're looking at a complete ethos, a culture in your office where the employer is very clear to the employees that this sort of behaviour isn't going to be tolerated, that there are ramifications in relation to it.

It needs to certainly be an office place where people feel safe to raise those complaints, and to know that they're going to be treated seriously and that there will be actions taken.

And then there's the whole issue around staff training. It's not sufficient enough . . . I think it was the McDonald's employees that were given a video to watch where they were making McFlurrys. It's not sufficient enough just to simply say, "We've provided training by giving a training video". The training must encompass full and proper training, and it must be refreshed. It must be kept fresh. And you can't say, "We gave training on that five years ago".

And I suppose the other really important point in all of that is to make sure that the likes of management . . . or if there are harassment buddies, which the Equality Commission recommend in their guidance with the Labour Relations Agency that you have a harassment buddy, somebody particular in the office who has been specifically trained not only to deal with those cases that arise, but to spot them, and to see when it happens, and to take the action at the time and not turn a blind eye to it.

We know all the different forms of harassment, whether that's through verbalisation, whether it's through text messaging or emails, right up to assault that can take place through inappropriate touching. Through all of that, there should be eyes within the management team that are watching out for that sort of stuff and taking steps to ensure that it doesn't happen.

Some of the more interesting things, and I think really where it is developing and moving to, is that there was talk, particularly from English commentary there just around the legislation, about holding a reporting register for complaints within your organisation.

That would allow you to see where the risks are, where the holes are, and to permit on-going monitoring to enable employers, then, to identify any types of things that are arising within their office place or their risky practices, and then take action to address those.

And I think that's another step that we see bolted on to the requirements that employers are going to be under. I think it's just about proactively identifying those risks, and particularly around the types of roles and circumstances that employees might be in.

It doesn't wholly apply, but the position is that female employees, when it comes to sexual harassment, tend to be more vulnerable than male employees. And if you have female employees in what are considered male-type jobs, those female employees may be vulnerable, and that's where you need to be assessing the risk and putting proper procedures in place to protect the employee.

Or if you have a circumstance that arises within your workplace, you're taking the circumstances of that and you're learning the lessons from it and applying it through.

I think if you've got into a tribunal case and prior instances were brought about, I think the tribunal would take a very negative view if you haven't taken steps to try to rectify it, never mind you trying to amount a reasonable practical steps defence at all. So, I think that that is important.

But again, just the employer taking those steps to update, recirculate their anti-harassment policies and procedures, and those policies and procedures that are specifically tailored within the handbook.

And then the other one that I did see was about this aspect of having visible signs in areas where customers interact with staff members, and advising that threats of violence and harassment won't be tolerated.

Now, we do see those. More recently I have come across those, particularly in public sector, in hospitals, in doctor surgeries.

Christine:  Doctor surgeries, yeah.

Seamus:  And even at a recent trip to McDonald's, I saw one that said, "Please treat our staff with respect. If you don't, we won't be able to serve or assist you". It definitely is moving that aspect that you can really see the onus now being pushed onto the employer at a much higher level than it was previously.

Christine:  Yeah. Seamus, while we were chatting in preparation, you talked about O'Reilly Stewart's receptionist as a good example. So, what kind of steps did you guys put in place? She's obviously away from the main office working on her own and public facing, so I thought that was interesting [crosstalk 00:21:14].

Seamus:  Yeah, we have a receptionist on our ground floor. It's a secure area to get from the ground floor to any of the other parts of the office. You have to go through a security door and all that sort of stuff. But there's an element that the receptionist is almost on her own down there. Now, there will be people that will be passing back and forth all day long, but there will be elements of time where she's on her own.

And just through experience and things that have happened, we have identified the risk in relation to that. We have CCTV up that the receptionist can see outside of the office. So, if somebody comes to the door, you just can't push the door to come in. You have to push the bell. She's able to assess and come through.

And it's not that we are in a bad part of town or that there are any . . . These are just general risks that are out there. And even things like she has a panic button and things like that. She's the forward-facing front person in our office.

It just struck me when I was reading through some of the commentary about this, on identifying what your risks are and then putting in the proper procedures to make sure that your staff member is protected.

Christine:  Brilliant. Thanks very much, Seamus. Have you anything to add on this third-party liability, or should I do a bit of a wrap-up and we'll move on?

Seamus:  No, I'm happy for you to do a wrap-up there.

Christine:  Brilliant. So, really I think my three takeaways regarding the third-party liability aspect of that is Northern Ireland is ahead of the curve with this legislation. GB is for once playing catch up with us.

Secondly, employers here in Northern Ireland can be held liable for third-party non-employee sexual harassment of employees, but not for harassment because of other protected characteristics.

And lastly, Northern Ireland employers must take reasonable, practical steps to protect their employees from harassment by third parties, such as clients or customers, where such harassment is known to have occurred on at least two occasions. Now, we did discuss that. That's in kind of the guidance. So, it's looking out for those recurring issues, really, isn't it?

So, if we move on then, Seamus, to adverse weather. It's very timely. It's 1 December. It's absolutely freezing. There's ice everywhere. There are no buses, trains, or anything else. So, it's very timely. It's almost like we had our crystal balls out. So, what should people be looking out for in these types of weather conditions for their employees?

Seamus:  Well, we're certainly hitting that time of the year. I think the past three mornings I've had to sit in the car for a few minutes and let the windscreen defrost and everything else before I can get moving. So, we are coming up to that time of year. We're running into January. That and February time are our traditional sort of bad months in relation to weather.

 We talked about in the poll in relation to temperatures, and I think that we've covered off on that. The other thing that struck me about temperatures in the office is that you do need to be careful around the profile of your employees, anybody with disabilities, and any older employees. Your older employees may not feel as safe leaving the house if there is ice on the footpaths and on the roads.

And internally, just with your employees that may suffer from any disabilities like arthritis, and diabetes, any other conditions that are sort of aggravated by cold temperatures, there may be specific steps that you need to take or adjustments that you might need to make in relation to them.

Interestingly, I did read about a bad weather policy and procedure that some offices and some work places have, and I thought, "God, that's a bit extreme to have a bad weather policy". But when I looked at the policy and looked at the practicalities of it, I can absolutely see the sense of it. It might be that it's only something that is used for part of the year.

We've talked about the very high temperatures in the summer that we've experienced over the past couple of years as well. I think at one point they were hitting in June, two years ago, sort of 41, 43 in London. So, it's that sort of extreme weather on both sides of it and problems that it can create.

So, just wanted to cover off on a couple of general things. From the employee's perspective, you're in a contract. You must go to work unless you're sick or you're on leave, so it's your responsibility to get to work. It's not the employer's responsibility to facilitate or to say, "The weather's too bad. Don't come in today". You're in a contractual position. You're filling your contractual obligations by attending work.

Now, taking this all with the basis that most people are either working from home full-time or doing hybrid working where they're coming in and out of the office on certain days, and other people that are full back into the office and not looking back on it. So, covering this in all the eventualities, but it is ultimately the responsibility of the employee.

In addition to that, then, you may get employers that will say, "Look, if there's snow, we will facilitate. We will get you to work in order to ensure that the business is still going".

But I think employees can say that they shouldn't be risking their health and safety in order to get to work. You need to be clear that there's no legal right for payment if they don't attend work, unless it's in your contract. So, unless there's something in the contract that says that there are those occasions of extreme weather that if you can't attend work, you get paid.

Also, then, for the employer, it's really looking at what are the alternatives during these periods. And yes, working from home. So, you may be asked to work from home. You could ask an employee to take annual leave or to make the time up later on, if that's a possibility, if they can't get to work.

And today is a good day in the sense for us because we have a day of bad weather here where it is very cold. I think there was an ice warning this morning until 10:00 a.m., and that's the first of the year. They said on the radio that this was the coldest morning since back in March. So, we are hitting that time of year again.

In addition to that, then, we have no buses. We have no public transport today for people to get in and out of work. This has been a concern for a number of our employees in the office here. Some of them had said, "I'm going to work from home", some of them have booked annual leave, and some have said, "It's going to take me longer to get into work because there's no bus, and can I leave early because my partner is driving past at half four rather than five today?" So, there's all that flexibility that you normally build in, and you take a sensible and a reasonable approach.

I know that we feel like we're going through a period of a lot of strikes and a lot of those sorts of circumstances arising. But in general, they're one-offs that tend to happen and that you can accommodate and that you can facilitate.

The other thing around that was if an employee rings and says, "Look, I can't get to work. I'm stuck at home. What's going to happen in relation to pay and salary?" Again, the straightforward, flat position is that employers have no obligation generally to compensate for employees who can't get to work. Unless you attend and unless you do the work, you don't get paid.

So, it will be about having those conversations and having them in advance. We've known for a while that weather coming up was going to be bad from last week. They've been telling us that. And also, in addition to that, we have known about the strikes and things. So, it's important to get that conversation started early and to keep the communication open, and facilitate essentially where you can.

It's not that different really to those employees during COVID that had become unwell or didn't want to come into the office because they had somebody at home that was unwell with COVID, and those sorts of precautionary steps that were taken. I think it does require that flexibility.

Look, we can talk about working from home all the time, but there are some businesses and some industries there that you just can't. You have to be in the workplace. So, it is just about trying to forecast that and trying to see it.

I suppose the other interesting aspect is that we have school closure days that are happening as well. I think we had one of those this week, maybe a half-day closure or something like that. And these are things that are reoccurring. We're seeing more of them.

Then coupled with the whole transport issue today, and if we get a very bad state of bad weather, you will have parents that cannot attend work because they have to care for their children. And there needs to be the flexibility in and around looking after that.

We know that you can make certain applications throughout your employment in relation for parental leave and things like that. But what we're talking about here are really the sort of emergency situations that are arising and how we deal with those.

But that struck my mind as well this week with a lot of the school closures that have been happening recently. Where does that leave parents in relation to their ability to care for their child? If they're normally in school, is mom or dad having to take the day off or share a day off in order to make sure that that's accommodated?

Are employers at the position where they're saying, "Yeah, you can work from home that day, but you're going to have your children there. And realistically, what sort of work are you going to get done?" Things have moved on from that, I think, from where we were at COVID. And I think that there is an expectation from employers that if you're working from home, that you are working.

But it does give up flexibility that you could possibly say, "Well, look, I'm not going to be able to work on the morning part, but I will work in the afternoon and I do have a couple of extra hours in the evening, or I'd pick it up over the weekend in order to make sure that the time of the work is covered".

Christine:  Yeah. Seamus, I actually saw an article covered by the CIPD that was saying that adverse weather conditions are going to be one of the top concerns for HR going forward just due to storms, flooding, very warm temperatures, very cool temperatures. So, in my view, it really is worth having a policy on weather just so you have listed all the different scenarios and what the business would be comfortable doing to accommodate in those scenarios.

When I saw the headline, I was like, "Really?" But when you read into it, we are starting to see more of it. So, it's probably a good thing to start thinking about rather than it kind of surprising you, really.

So, Seamus, what about Christmas parties? It is the season for HR to have breakdowns, I think, isn't it? Everyone else is enjoying themselves and HR are just wondering, "What on earth is going to happen, and what will I have to deal with in the morning?" So, how can they start to lay the groundwork for a memorable, in a good way, Christmas party?

Seamus:  Well, I suppose we've hit 1 December and we're in full swing with all of that now.

I was having a coffee with a client of mine who's an HR adviser last week, and they were saying that their concern was that usually coming up to the Christmas party, you know the typical personalities to watch out for at the party. Maybe past experience has told you. But with the working from home aspect now and not knowing maybe staff as well as what you would've known, they were saying it's harder to judge it.

This company, actually, the position is that they have a couple of sort of sober buddies that go to the Christmas dinner that don't take any alcohol whatsoever just in case that a problem arises. Maybe if somebody is worse for wear or if somebody is left where they can't get a lift at the end of the night, there is sort of responsibility from the organisation to ensure that people can get home and that they're taken care of.

And I suppose that all really does bring it round to the migraine at the Christmas party, never mind what happens afterwards with it. It's that aspect of the vicarious liability and the employer's responsibility.

Nobody wants to be the "bah humbug" and say, "Look, we're not having a party because it's too risky", but it is a serious consideration.

So, there are all those sort of standard tips that we have about maybe getting communication out to staff members in advance of the party, letting them know what the expectations are in relation to behaviour. Bad idea to take the problem that you've had with somebody on the night of the Christmas dinner, as tends to happen.

And I think if there is a good guidance piece that's issued . . . even from the point of view if you're going out for a Christmas event, the events tend to be booked under the name of the company, the organisation, and immediately you're into the reputation of the organisation in a public forum.

It's just making staff aware of what the expectations would be. And not to rain on anybody's parade or to put a damper on the night, but just so that if something does happen, staff are aware in advance that those are the issues.

The alcohol around it, I mean, most of the issues that arise from Christmas events tend to be as a result of alcohol. And it doesn't necessarily need to be anybody that's had too much. It can just be loose lips on the night. Topics of conversation around salary and those sorts of things are probably best avoided on the night of the Christmas party as well.

And again, just sort of communicating that and letting staff know that it is a night for people to get together to celebrate, to have fun, and for good outcomes to come out of it rather than anything negative and bad.

But I think, for employers, it is around the liability issue. And there have been a number of tribunal cases where dismissals have taken place as a result of events at Christmas parties.

I've advised on a number of serious matters that have happened where there have been physical assaults and fights that have arisen as a result of the Christmas party.

And the liability is to such an extent for the employer that even if the employer doesn't organise the event, but there are employees from the workplace that go out together, and even if the employer hasn't funded any aspect of the costs for it, the liability can still attach to the employer as well in relation to it, which can leave the employer in a very difficult position. And it forces the employer's hand in terms of having to deal with the matters consistently and across the board also.

I mean, I think it is that aspect of making sure that just staff are aware in advance of what is expected, what the standards are, when the event will start, when it will finish. And where you can, sort of limit the alcohol. Don't go overboard in relation to providing the alcohol, because that's another area where employees can say, "Well, look, I went out and I was plied with alcohol by my employer. There were bottles of wine on the table. And what was I to do but drink it?" I've heard that before.

Christine:  Well, if there was anyone who was at the Annual Review a few weeks back, Jason Elliott covered off a story of Starplan, a Northern Ireland company. Their last Christmas party went exceptionally badly, and some serious sexual harassment took place. The perpetrator actually admitted at tribunal that he had 22 drinks on the night, all provided by his employer. Now, I personally think I would've stopped at around the 20 mark, but that is a serious amount of alcohol to be providing.

So, I think, yes, a bottle of wine on the table to be shared is a lovely gesture, but I don't think you need to be getting anyone to that state.

Seamus:  No. And couple of examples there as well just are this case of Bellman v Northampton Recruitment in 2018. That was a recruitment company, and the company was held vicariously liable for the actions of a significantly inebriated manager, when he punched a colleague at the Christmas night out.

Another case there was Gimson v Display By Design Ltd. This was a 2012 case where the employer was held to have fairly dismissed the employee because the employee was fighting on the walk home from the Christmas party. So, it wasn't even that took place at the event, but it was on the way back.

And there's another case there that's an interesting one. It's a 2005 case of Judge v Crown Leisure. And the director in the company had promised the employee a pay rise on the night of the Christmas party. And when the employee didn't receive the pay rise as promised, then they resigned and they claimed constructive dismissal.

Now, the claim wasn't successful, but it went to the Court of Appeal, and the Court of Appeal had said that in their judgement, an employer should be reluctant to discuss topics given that the conversation could result in a binding verbal contract with the employee.

Christine:  Wow, that is a cautionary tale if there ever was one.

Seamus:  I thought so. I suppose the other classic one is always the employee that arrives at the Christmas party with the mistletoe. That can be a recipe for disaster. And it very much skates along the lines of what will be fun and good humour to one employee may be very offensive and cross the line for another. So, it's probably best that those sorts of things are avoided.

The other big one that has developed over the years from the Christmas party tends to be the social media aspect, people taking photographs and then putting them on social media, photographs of drunk employees, photographs of employees being sick, falling on the dance floor, Those things that at the time are viewed as humorous but very offensive for the employee.

And the difficulty then is the employee coming back to the employer on the Monday morning and saying, "I want to take a formal grievance here. It's too late for me to deal with this informally because the photographs have been up there. The damage has been done. Here are the comments that made on social media about me".

So, it can also just be a point maybe to make clear to the employees about what happens in relation to social media postings and things like that.

It is very easy to take a video and to take a photograph with the way things are at the minute with phones and other devices. But for someone that goes to a Christmas event to have a good evening where something happens and that they are ridiculed as a result of it is not a good one.

I dealt with a case, and it was a few years ago, where there was a photograph taken where it looked like the lady was picking her nose in the photograph, and this was put up on Facebook at the time. The employee was so upset about it, really embarrassed and upset.

Certainly I worked through the process, but it was always in my mind that that employee would be very difficult to get back on track as regards sort of trust and confidence issues after that as well. And it wasn't really anything that the employer could have done to avoid, because it was employees that had taken the photograph.

And it was just an opportunistic photograph as well. It just looked like the person was doing something that they weren't. But it created difficulties for the employer in relation to workplace relationships and everything else.

So, those sorts of points, hopefully that's helpful and doesn't fill any HR managers there with complete dread and anxiety before their Christmas do.

Christine:  Brilliant. Thanks very much, Seamus. So, my takeaways really from our winter section or adverse weather, I would get a policy in place. How are you going to handle things like people not getting to work? Will you pay them? Will you not? How are you going to communicate if the office has been closed due to the adverse weather? Have a think about it now how you're going to handle things and get a policy in place.

Secondly, with your temperatures in the workplace in particular, be aware of more vulnerable employees and take necessary action to give them the extra protection that they'll need if it gets very cold.

And at Christmas parties, have a plan. So, being aware of your social media risks and going easy on the alcohol provision would really be the two main ones for me.

Thanks very much, Seamus. We're coming to the end. If you are having thoughts about social media and what could happen at your work Christmas party, you might want to check out our "Social Media in the Workplace" eLearning course. The details are there. It'll help employees understand what their responsibilities are, and maybe learn to use social media a bit more responsibly in the workplace. You can contact debbie@legal-island.com for more information on that.

Seamus and I will be . . . Oh, no, sorry. Apologies. I missed that slide. Because it's the end of the year, just to let you know a few of the new events that are coming up in Legal-Island in our spring season.

So, we've got "Legal Answers to your HR Dilemmas". That's going to be dealing with all the real bread-and-butter issues that HR people have to deal with day and daily. That should help you out with that. Please do sign up to that. We'd love to see you there.

We've got our "Fundamentals of AI for HR" coming up as well. Now, that event sold out a few months ago, so if you are interested in that, get your name down sharpish for that.

And then if you're new to HR or you've got some new HR employees on your books, the "Back to Basics: Employment Law" course would be extremely helpful for them.

And then we have our "Data Protection Update" coming up in May.

So, it'll be lovely to see you at those events.

Seamus and I are off for our Christmas break. We're taking a break in January, so if you're going to miss us, you can find us on Spotify, Amazon, and Apple Podcasts. You'll also find us on LinkedIn. If you'd like to have a chat, please do connect to us.

I'd just like to thank you all for coming to "Employment Law at 11" over the last 12 months. Thank you very much, Seamus, for being involved again this year. It's been fantastic.

Thanks to Maria for holding everything together in the background. You don't see her, but she makes it all work and we couldn't do it without her. So, thank you very much, Maria.

Everyone, have a lovely Christmas. We hope your Christmas parties are peaceful and enjoyable, and we'll see you in the new year. Thanks very much.

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