A female employee has complained that a drunken male colleague made sexual advances towards her at the Office Christmas Party. How do I handle it?


Amanda Magee writes:


It is important for both employers and their staff to remember that the normal rules of the workplace apply to office parties, even when the party is out of office hours and takes place in a hired venue. Whilst it is generally true that what employees get up to outside work is their own affair and often nothing to do with their employer, employers may be held vicariously liable for incidents that take place at work-related social events if they are considered to be ‘in the course of employment’.

The female employee’s grievance should be taken seriously and dealt with in accordance with the Labour Relations Agency’s Code of Practice on Disciplinary and Grievance Procedures. However, if you have a separate policy on Harassment it may be appropriate to deal with the complaint under that policy, so long as no less protection is provided for the employee bringing the grievance.

Whilst the Code places emphasis on resolving grievances informally, this may not be appropriate or effective depending on the nature of the conduct complained of. If that is the case, the formal route must be taken.

The female employee should be invited to a meeting to discuss the grievance, and be informed of the right to be accompanied. Following the meeting, you should carry out a full investigation whilst ensuring that confidentiality is maintained.

In investigating the complaint, you must be careful not to assume that because alcohol had been consumed or because the events took place in a social environment, there is blame on both sides, because a failure to deal effectively with complaints of harassment can of itself result in sex discrimination or constructive dismissal claims.

Following the investigation you should decide what action, if any to take and notify the employee of your decision with an explanation as to how the decision was reached. The employee should be notified of her right to appeal against your decision.

Depending on what actually happened at the party, the male staff member’s conduct could amount to sexual harassment. Readers will be aware that harassment on the grounds of sex in employment is prohibited by the Sex Discrimination (Northern Ireland) Order 1976, which defines sexual harassment as unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them (Article 6A (1)).

If, after investigation, you decide that the male employee’s conduct warrants disciplinary action, disciplinary proceedings should be commenced in line with the Statutory Disciplinary and Dismissal Procedures.

Where harassment is deemed to have taken place, the Company may also be liable if it cannot show that it took reasonably practicable steps to prevent harassment from occurring. In the case of Chief Constable of the Lincolnshire Police v Stubbs, it was held that sexual harassment by one police officer against another was in the course of employment, even though the sexual harassment took place in a pub after work and at an organised leaving party. The Tribunal found these work related functions to be an extension of employment and the employer was therefore liable for the acts of the employee.

Similarly, in Livesey v Parker Merchanting an employee was sexually assaulted by a colleague on the way home from the Christmas Party. Earlier incidents of harassment had occurred during normal work hours and the Christmas Party itself. It was held that the sexual harassment amounted to a continuous course of conduct and that all of the incidents of sexual harassment were therefore in the course of employment. Again, the employer was held to be vicariously liable.

Employers should therefore ensure that that they have clear equal opportunities and anti-harassment policies in place and that all staff are aware of the consequences of unacceptable behaviour, particularly in advance of work-related social events. While only about a third of employers have a specific policy on behaviour at office parties, there is merit in considering implementing one so as to avoid situations like this one arising in the future.