Christmas parties
Matthew Tom, employment law specialist at solicitors Tarlo Lyons, examines the liability of employers for the acts of their employees at Christmas parties.
Expert advice
Staff social functions are a fertile source of this kind of claim. Whenever employees are attending a function connected with work, employers are likely to be under just the same obligation to prevent harassment as in any other normal working situation.
In order to escape liability for sexual harassment, an employer is generally required to prove that it took "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".
An employer could also try to establish that the employee's actions were outside the context of his or her employment, but this will usually be difficult.
Employers can find extensive general guidance on preventing harassment on the Equal Opportunities Commission Web site. The basic points are to issue a policy statement against harassment; to ensure that staff are made aware of it; to provide support and/or training for those charged with responsibility; and to monitor the ongoing effectiveness of procedures in future, including any disciplinary action taken.
Since sexual harassment counts as sex discrimination, compensation that may be awarded is, in theory, unlimited. This is particularly relevant in harassment cases, because harassment can be psychologically devastating for the victim. If an employee is mentally unable to return to work for a long period after being harassed, her or his loss of earnings will form part of the compensation.
Compensation is also payable for injury to feelings, which in the more extreme cases can reach £25,000 or even higher.
The law
The liability of an employer for the acts of its employees is known as "vicarious" liability. This can arise either under the common law or under the specific terms of a particular statute. Sexual harassment is covered by the Sex Discrimination Act 1975 (SDA), which deals with vicarious liability as follows:
"Anything done by a person in the course of his employment shall be treated… as done by his employer as well as by him, whether or not it was done with the employer's knowledge and approval."
According to case law, anything done at a staff Christmas party will almost always be "in the course of employment". In one case, this was even held to apply to a female police officer who was sexually harassed by a colleague while relaxing in the pub after a shift.
The House of Lords has recently ruled that, in order to be vicariously liable for the act of an employee, broadly speaking there must be a "close connection" between the employment and the act complained of. This will usually apply to anything done by an employee while attending a staff social event.
The problem
Following the staff Christmas party, one of your waitresses complains of sexual harassment by one of the chefs, saying that as well as suing the chef, she is also taking the company to court. But surely it's nothing to do with you? After all, it didn't happen at work.
Beware!
An employer's failure to take appropriate steps to prevent sexual harassment can be a fundamental breach of contract, entitling an employee to resign and claim constructive unfair dismissal.
‘To do' check list
For staff parties in particular, employers should anticipate the particular difficulties that may arise and take effective preventive steps:
Consider the venue - can someone keep an overall eye on what's going on?
Take steps to monitor employees' drinking - one drink at a time, no bottles on tables, all drinks from one bar, consult bar staff occasionally, etc.
Take responsibility - ensure that someone remains relatively sober and in control, ready to intervene if problems arise.
Be proactive - remind staff about appropriate boundaries of behaviour.
End the party at a reasonable hour.
Provide collective transport if you can - these things often happen in taxis.
Contacts
Tarlo Lyons
matthew.tom@tarlolyons.com
020 7405 2000
Equal Opportunities Commission
www.eoc.org.uk
Further legal advice is available at
www.caterer.com/manager
