Christine:  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:  So, my takeaway really is 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.