As we enter the season of work Christmas parties, employers need to be reminded of their significant legal responsibilities regarding employee behaviour at social events. Whilst work social events are meant to be a celebration, as any HR manager can confirm when they go wrong they can present a nightmare scenario for employers and employees alike. An employer’s responsibility to protect its staff at such events has evolved further with the introduction of the new statutory duty to prevent sexual harassment.
New employer duty to prevent Sexual Harassment
Under the new section 40A of the Equality Act 2010, since 26 October 2024 all employers must take reasonable steps to prevent the sexual harassment of their employees in the course of their employment. As a general rule, the conduct of an employee at a Christmas party, which is sufficiently connected to their employment, such as being organised through work, is likely to fall within the ‘course of employment’, and any conduct could therefore be seen as if it were committed whilst at work.
This new duty emphasises the need for employers to be proactive in preventing sexual harassment and keeping their employees safe. It covers not only harassment by other employees, but third parties too. Any failure to comply with this duty can expose employers to an uplift of up to 25% to any compensation award if a claim in the employment tribunal for sexual harassment is successful. Employers can be found vicariously liable under the Equality Act 2010 for sexual harassment committed by its employees if it occurs during the course of their employment. This means that the new duty can be breached, even if the employer is not aware of the conduct, and takes place outside normal working hours or activities, such as at a work-related party.
Associated risks with a work Christmas party
A combination of excessive alcohol consumption, high spirits for the upcoming festive period and the desire to ‘let off some steam’ at the end of the year can lead to all manner of things going wrong, from fights, arguments, and unfortunately unlawful harassment, being unwanted conduct related to a protected characteristic under the Equality Act which has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. Sexual harassment occurs when the unwanted conduct is of a sexual nature, which has the same purpose or effect on colleagues as other forms of unlawful harassment.
As an employer, you need to be aware that you could be held vicariously liable for the actions of your employees. It’s important to remember that while your Christmas party may feel like a social event outside of work, an official organised Christmas party is essentially an extension of your workplace, and all the usual rules and guidance applies.
Ways to mitigate the risk
To help employers understand and comply their duty to prevent sexual harassment, the Equalities and Human Rights Commission (EHRC) has published an 8-step guide.
Employers have a preventative duty, including a requirement under step 3 to assess and take steps to reduce risk of sexual harassment in the workplace, and informing staff of a confidential reporting system and when a report should be made, whether as a victim or witness of harassment. These steps specifically made in connection with social events will go some way towards complying with the duty to prevent sexual harassment, but should also have the desirable effect of reducing the risk of other forms of unlawful harassment occurring. Examples of possible practical steps include:
Limiting alcohol consumption:
- This could be achieved through a drinks token system that allows each employee to have a certain number of drinks on the company and then after that, they will have to be purchased at their own expense, or setting a drinks round limit.
- Ensuring that non-alcoholic drinks are readily accessible for employees and prominently advertised will also promote a festive environment without the pressure to drink.
- Arranging social activities and games at the event which do not centre on drinking and will reduce the rate of alcohol consumption, and move away from a drinking culture at work.
Sending conduct reminders:
- Whilst this is a time to celebrate, and your workforce should be treated like adults, employees do need to be reminded of their expected conduct during any work-related social event. Sending a company wide email informing employees of their expected behaviour and to have fun but stay safe and respectful and referring them to your existing employee handbook is a great option.
Monitoring:
- Having a designated Safety Officer (both male and female) who remains sober and vigilant to any misconduct, and to whom any misconduct by employees or any third parties can be immediately reported, can ensure a safe environment for all employees.
- Having an ongoing presence of senior management will also act as a deterrent to any excessive behaviours.
- Additionally, having an accessible and regularly promoted complaints procedure will help employees to communicate any misconduct that occurs at the event so you can investigate it accordingly.
Risk assessment plan:
- Identifying the risks and responding accordingly prior to the event can eliminate vulnerable situations before they can occur. This could include choosing a party venue close to public transport, finishing the party at a reasonable time and organising transport for employees to safely get home from the venue.
What can we do to help?
In-person and online training sessions
- We can conduct training for all employees to ensure that your staff understand what sexual harassment and other forms of harassment are, and how they can work together to prevent it. We can also provide you with up-to-date training materials for your staff to refer back to.
Reviewing contracts and policies
- A comprehensive review of your current sexual harassment policy/policies, highlighting areas for improvement.
- A thorough examination of your employment contracts for employees and contracts with third parties, to ensure you are not caught out by the new duty.
- We can draft a bespoke guidance note or a social events policy so you comply with your new duty as an employer and you can refer employees to these materials when discussing the upcoming work Christmas party or other work social events.
Managing Risk
- We can work with you to create a risk assessment plan to identify what ‘reasonable’ steps you could be expected to take. We can help to implement the actions required to make sure that your company is compliant with the new duty.
- We can create sample wording for a workforce questionnaire to help you better understand the risk in your workplace and the risk in hosting social events, so that you can create targeted changes such as new policies or arrange further training.
How can we help?
If you are faced with an employment issue that is affecting your workplace culture, our team of experienced independent and impartial employment law advisors and investigators can help. Please don’t hesitate to get in touch with the Employment team.
