05 December 2016
Every year, Tom, Dick & Harry LLP sends out a circular telling HR to be careful about Christmas. It gift-wraps an egg and invites HR to suck it. And here is that circular. Only, these are actual Christmas parties which ended up in actual Tribunals. Not like yours. Yours won't, obviously.
Post-party gossip girl
Episode 1: A feisty party loving female employee is known to be having a relationship with a colleague. She is seen at her employer’s Christmas party kissing and going off to a hotel room with another colleague. A few weeks later she discovers she was pregnant. (If this was 'Eastenders', there would be 'doof doofs' at this point)
Episode 2: She informs her employer of her pregnancy and asks that it be kept confidential. Within an hour the HR manager is gossiping over whom the father might be. The office gossip grapevine goes into overdrive and it is quickly all over the firm - including coming to the attention of the prospective father candidates. ('Doof doof')
Episode 3: The pregnant employee raises a grievance against the gossiping by the HR manager and asks to work from another location. Request refused and grievance not dealt with. Will she simply hide away in her office until the fuss blows over? Will she attempt to carry on, ignoring the gossip? No. Instead, she takes her story to the local press and issues tribunal proceedings for constructive dismissal, sex and pregnancy-related discrimination and harassment.
Episode 4: The tribunal find in her favour in relation to constructive dismissal and against her in relation to discrimination claims. Does our feisty heroine give up? No you cheer as she takes her case to the Employment Appeal Tribunal (EAT). (Double doofs)
Episode 5: Allowing her appeal, the EAT holds that the tribunal was wrong not to characterise gossip relating to an employee’s pregnancy as discrimination and harassment under the Sex Discrimination Act. It was clearly unwanted conduct related to pregnancy.
We repeat, this is close to what actually happened in a real case (Nixon v Ross Coates Solicitors and another ). The treatment, in this case gossip which the claimant found distressing, need only be related to the pregnancy. The fact that her actions at the Christmas party were already widely known and bound to provoke gossip did not assist the employer in relation to either liability or quantum.
The battle of the zookeepers
Opening scene: A merry meerkat keeper attends the zoo's Christmas Party on the arm of the llama keeper. Enter the llama keeper's former girlfriend, the scorned monkey keeper.
Scene 2: Cut to the powder room where the jealous monkey keeper is mocking the appearance of the meerkat keeper. Enter the meerkat keeper who overhears every word.
Scene 3: Later, the verbal confrontation escalates to a physical fight, in which the alcohol-fuelled meerkat keeper hits the monkey keeper in the face with a wine glass resulting in a deep gash requiring hospital treatment. The plots getting a bit short of laughs at this point but resist the repeat of 'Only Fools…' for a moment if you will.
Scene 4: Following an investigation, the zoo concludes the meerkat keeper struck the first blow causing a serious injury. Cue the music as the love rivals await their fate…
Scene 5: The quick-tempered meerkat keeper is fired for gross misconduct. As for the jealous monkey keeper, she is given a final written warning and banned from all future social events.
Scene 6: The disgruntled meerkat keeper brings a claim for unfair dismissal. Was it fair that she should lose her job while the monkey keeper kept her job free to continue to work alongside the desired llama keeper?
Scene 7: The tribunal concludes that had the zoo dismissed both keepers for gross misconduct, then both dismissals would have been fair. However, the disparity of treatment rendered the meerkat keeper's dismissals unfair, albeit compensation was reduced to zero due to contributory fault.
Post-script: Was the tribunal correct in their strict insistence that both parties to a fight should face the same penalty? Well, no. Shortly after the battle of the zookeeper's decision (Westlake v ZSL London Zoo) was handed down, the EAT in MBNA Ltd v Jones overturned a similar tribunal decision. The EAT held that when considering a claim of unfair dismissal based on disparity, the tribunal must focus on the treatment of the employee bringing the claim - if it was reasonable for the employer to dismiss this employee, the mere fact that the employer was more lenient to another employee is neither here nor there. As to the battle of the zookeepers, the pending appeal to the EAT was then quickly settled.
Lessons for HR
- Remember, the Equality Act 2010 makes employers liable for acts of discrimination, harassment and victimisation carried out by their employees in the course of employment, unless they can show that they took reasonable steps to prevent such acts.
- We are not in favour of emails reminding people of policies just before parties. It's legally correct, but you are basically telling your employees you don't trust them and that you are in fact the Grinch. Happy Christmas. You should already have a clear policy on the standards of behaviour you expect and what the disciplinary penalties will be for breach of the rules, including possible summary dismissal if the offence is one of gross misconduct.
- Be aware of the likelihood of pictures and videos from the party being posted on social media. Again, you should already have made sure your employees know exactly what your rules are regarding the use of social media in relation to work and work related events. If you forgot the latter included the party, hopefully there's always next year.
- Deal with any allegations, inappropriate behaviour and violence seriously and sympathetically in line with the company’s policies and procedures. You never thought 'C'mon, it's Christmas!' was an acceptable response and you are ready to disabuse anyone (the CEO?) who thinks otherwise.
- Should you be faced with having to deal with the aftermath of an office party brawl, you should consider the level of sanction that has been imposed on other employees in the company in similar circumstances and act consistently with previous decisions, unless there are material differences in the circumstances or offence. Christmas, and for these purposes we are the Grinch, is nothing special.
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