Harassment, Bullying and Discrimination at the Christmas Party: Minimising Risks


Once upon a time there was a charity that each year hosted a black tie event to raise money for other charities and good causes such as the British Olympic Association and Disability Rights International. It was or cultivated an air of exclusivity: black tie events for men only, hosted by celebrities and offering some quite unusual prizes at the after dinner raffle – lunch with the then Foreign Secretary, Boris Johnson or a course of plastic surgery to “spice up your wife.” The only women invited were there to serve the guests, given not only a (minimalist) working outfit, but a 5 page non-disclosure agreement, allegedly signing away rights before they were breached…

The President Club, for that was the charity concerned, is, not surprising, now history. The scandal that broke after the seedy goings on at the Club were revealed by an undercover journalist from the FT, Maddison Marriage, led to its swift closure.

So after having safely navigated religious susceptibilities, the next traps to avoid for a safe Christmas party are those concerning unacceptable employee behaviour. Remember that although the Christmas Party may be taking place outside of normal working hours and away from the workplace, an employer will still be vicariously liable for (most) actions of their employees at such functions, including harassment and other forms of discrimination. The office Christmas Party is a paradigm of those occasions which the law would view as an extension of employment. There is, however, a reasonable steps defence to claims of discrimination, including harassment. Here a tribunal will look at whether an employer did take reasonable steps, and will then go in to consider what else could have been done. In Casperz v MoD the existence of a dignity at work policy coupled with evidence that the procedures in the policy were followed, defeated a sexual harassment claim, but in Allay v Gehlen the defence failed: training had been offered in the past, but it was too “stale” to defeat a sexual harassment claim.

The President’s Club scandal drew attention to one other gap in the law: the absence of a remedy for harassment of employees by third parties. When the Equality Act 2010 was first on the statute book it included, in section 40(2), provisions against harassment of employees by third parties. When Theresa May was Home Secretary and Minister for Women and Equalities for some unaccountable reason she scrapped these provisions in 2013.

The catchily named Worker Protection (Amendment of the Equality Act 2010) Bill, will be in force effective from October 2024: when it is introduced there will be a duty on employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment. This is not quite the same as saying employers are liable for the harassment of their employees by third parties, but a breach of this duty will entitle the tribunal to increase compensation awards by 25%. Readers will note that all the usual terminology, such as “in the course of employment” is preserved in the new wording. The new provisions are weaker than the old section 40(2) and would not have combatted the disgraceful conduct you can read about in cases such as Burton v DeVere Hotels. Nevertheless, the lengthy implementation period means that as well as enjoying dry January, the New Year will be the ideal opportunity to update policies and procedures on harassment, bullying and discrimination.

Come back tomorrow for Day 5 of our Christmas Employment Series, where we look at absence, sickness and lateness following the Christmas party.


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