For December 2024, we have asked the employment team at Tughans LLP to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?”

The articles are aimed at HR professionals and other managers who may need to deal, from time to time, with the less commonplace disputes at work; issues that may, if handled incorrectly, lead to claims for discrimination, constructive dismissal or some other serious difficulty.

This month’s problem concerns:

"We are having our Christmas party soon. They have traditionally involved a lot of alcohol and we have received sexual harassment complaints afterwards. We know there is a new duty to prevent sexual harassment in the workplace, and we want to comply without spoiling the event for the majority of responsible staff. How do I handle it?”   

Christmas time can be a particularly difficult period for businesses to navigate, especially with the high volume of social events. The “traditional” Christmas party can create a host of HR related problems and it important for employers to be alive to potential risks and reduce the risk of employment tribunal claims.

While some employers try to avoid culpability for incidents at the Christmas party, the general position is that any work-related event is an extension of the workplace and on this basis, workplace rules on conduct and discipline extend to social gatherings. Most importantly, you should be aware that employers are vicariously liable for the actions of their employees in the course of their employment. This means that employers are likely to be “on the hook” for employees’ bad behaviour at the Christmas party, including parties held outside of normal working hours or off site.

Sexual harassment complaints are among the most common to surface following corporate events. The legal definition of sexual harassment is “unwanted conduct” which is related to someone’s sex. This includes any “unwanted non-verbal or physical conduct of a sexual nature” which has the “purpose or effect” of violating their dignity or creating an “intimidating, hostile, degrading, humiliating or offensive” environment. This could be anything from lewd or offensive comments to more extreme acts such as inappropriate touching or sexual advances.

From 26 October 2024, employers in Great Britain have a statutory duty to take reasonable steps to prevent sexual harassment of employees in the course of their employment. This is a proactive duty, similar to an employer’s health and safety obligations. This new duty does not make any exceptions for acts committed in the festive spirit, and employers should ensure that they take appropriate steps to demonstrate that they are taking reasonable steps to prevent harassment from occurring.

This change does not apply in Northern Ireland, although where there has been a claim of sexual harassment, employers can rely on the defence that they have taken “such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description.” This is often referred to as the statutory or reasonable steps defence – and it makes sense to take these steps proactively so that you can rely on them if a claim arrives.

• There are several practical steps you could take before the Christmas party to try and mitigate the risk of sexual harassment complaints, including:
• Ensuring your policies and procedures are robust and up to date, especially those covering anti-bullying and harassment, disciplinary and grievances.
• Taking steps to raise awareness of sexual harassment and the standards you expect by providing awareness training which covers behaviour at social events.
• Training managers so that they can lead by example and handle any complaints in a sensitive manner.
• Immediately before the event, remind employees about their responsibilities and your expectations (yes - the dreaded HR Christmas email!).
• Remind employees about their use of social media, taking photographs etc. at the event.
• Nominating a responsible person to discretely monitor behaviour – ideally a senior manager.

Try to identify and address potential aggravating factors which could increase the likelihood of sexual harassment taking place, such as managing alcohol intake by using drinks tokens, arranging transport home, thinking about where the event takes place or arranging festive activities that do not involve alcohol.

If any complaint is received after the party, you should ensure it is handled correctly and in line with your internal policies and procedures. If a complaint is upheld, it may be necessary to take further action with the perpetrator(s) under your disciplinary procedure.

Lastly, enjoy the Christmas break – you will have earned it!