Top tips to avoid legal fallout this Christmas: Part II (the morning after..)

by 08 Dec 2011

In the second instalment of our two-part series looking at the legal guidelines for hosting successful end of year celebrations, HC reveals how the actions a company takes the morning after the party can carry more legal implications than the event itself.

According to commercial law specialists Kemp Strang, despite the preventative measures put in place to curb behaviour at Christmas parties, a range of incidents still happen each and every year.

Lisa Berton, Kemp Strang partner, said “When it comes to staff, alcohol and the festive season, some incidents aren’t even conceivable until they happen.”

The actions of HR and managers the morning after are integral, because the legal implications often arise in the wake of the incident rather than on the night itself.

Berton said that while it’s very important to have a range of preventative measures, organisations must also be thinking about their strategy for dealing with issues that arise in the days after the party.

One such issue is controlling the effects of the ‘rumour mill’ after a big company get together, and employees must feel safe to speak to their supervisor or HR manager about a complaint, without fear that they will then gossip about the incident.

“Maintaining confidentiality for an employee who feels it necessary to make a claim, and for all involved in accusations or disputes, is critical. Employers can get themselves into even more trouble if they fail to deal with employee issues that arise after the party’s over,” Berton said.

Kemp Strang has put together three common scenarios that companies often deal with in the aftermath of a Christmas party, the legal implications and advice for employers:

1. A junior colleague posts a photo on Facebook with a manager and his female junior staff member dancing very close at the office party. The HR manager overhears a conversation between two other colleagues who’ve seen the picture online the next day.

Berton said:

  • Employers can’t interfere in the private lives of employees unless it impacts on the work environment, so simply posting a picture or status update about a work colleague is not, in itself, sufficient to discipline an employee.

  • However, when that photo or status update comes to the attention of the employer, and could impact on the reputation of the organisation or those who the post is about, the employer is entitled to speak to the employee and ask for the post to be removed.

  • In this case, where the photo denigrates a boss or co-worker, the photo should be taken down. Situations like this reinforce the importance of a social media policy which outlines acceptable online conduct for employees and allows disciplinary action for breach of that policy.

  • Recent court cases have dealt with threatening or other derogatory posts which have been sufficient to justify the dismissal of employees and, if left unaddressed by the employer, can open them up to their own breaches of occupational and workplace health and safety laws - especially if a co-worker feels bullied or harassed by the post, not to mention claims by the employee for compensation. 

2. A heated argument gets out of hand during the party, and ending in a brawl that requires other staff members to break it up. It’s fairly awkward in the office the next day.

Berton said:

  • Employees in this situation face possible criminal charges given their physical violence.

  • Threats or actual violence should not be tolerated by employers, and this should be addressed in employment policies. Employment contracts should provide for summary dismissal where employees are charged or convicted of a criminal offence which brings the employer into disrepute or otherwise prevents an employee from working for the employer.

  • Even where neither participant in the brawl wants to press charges, the fact it occurred and other staff intervened has a great impact on trust and staff morale.  Although using your judgment of the individual circumstances are important, due to the serious nature of physical violence and the associated breach of occupational and workplace health and safety laws the matter should be investigated with summary dismissal a high possibility.

3. The morning after the Christmas party, an employee complains to the HR manager about a senior manager acting inappropriately during the party. She says they’d both had a few drinks, but on the dance floor he started putting his hands all over her. She pushed him away and went to the bathroom. Later in the night, she saw him with a group of colleagues from his department looking and sniggering at her. Today in the office, she feels very uncomfortable.

Berton said:

  • Scenarios like this one are, unfortunately, very common during or after end-of-year work functions, and there are numerous legal implications for all involved.

  • From the employer’s perspective, the process for how this situation is dealt with is paramount. A sexual harassment claim would be the first foreseeable risk, but if the behaviour of the senior manager in question continues at work the next day and following, discrimination and adverse action claims may be made, particularly if the employee is subjected to further detriment for making a complaint. This can sometimes occur when a senior manager is in the firing line.

  • The preventative measures for this kind of scenario also come down to having the correct policies in place and up-to-date. These will provide a beacon of light for employers and employees – the yardstick for identifying wrong behaviour and the process to rectify situations like this.

  • Training employees in anti-discrimination and harassment laws prior to an end-of-year or other major function about what is and isn’t appropriate conduct is also good practice.

 

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3 Top tips to avoid legal fallout this Christmas: Part I

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