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MILS Update: Christmas PartiesBack

MILSLogo2We are considering hosting a Christmas party for our staff, is there anything we should be mindful of?”

 Providing or hosting work Christmas parties are a good way to increase staff morale, making employees feel appreciated but there are potential issues that can arise as a result.

Firstly there are a number of possible discrimination aspects to consider when holding or contributing towards a Christmas party.  The Equality Act 2010 outlaws certain discrimination, harassment and victimisation on grounds of protected characteristics.  As this includes religion and belief, Christmas parties could discriminate against non-Christian staff if their religious festivals are not also celebrated.  However, it may be unlikely that an Employment Tribunal would find that the holding of a Christmas party in itself constitutes religious discrimination, as Christmas parties are not really about celebrating religion.  Rather they are about improving staff morale and loyalty by way of thanking employees for all their hard work and efforts over the previous year.

A simple resolution therefore is for employers to be careful to take into account the different religions when planning the event such as considering whether:

  • the venue is suitable and the date acceptable (the venue should also be easily accessible and not put disabled employees at a disadvantage);
  • the chosen theme or entertainment are likely to cause offence to anyone;
  • a choice of non-alcoholic drinks be provided; and
  • the menu accommodates particular dietary requirements.

The most likely claim to arise as a result of a Christmas party is for harassment, usually sexual harassment, usually following excessive alcohol consumption.  The Equality Act defines harassment as “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual”.

An employee complaining of sexual harassment is only required to show that the alleged treatment was connected or associated with sex, remember it can be claim by men as well as women.  In addition, claims can be made if the unwanted conduct is related to the sex of the victim or any other person, thus enabling associative claims such as claims by witnesses.

It is important to be mindful that employers are liable for the discriminatory actions of their employees carried out ‘in the course of employment’.  The Equality Act states that any act committed by an employee in the course of their employment is to be treated as also being committed by their employer – regardless of whether the employer knew or approved of the action.

Whether or not an act of discrimination is carried out in the course of employment is a question of fact to be decided by tribunals on a case-by-case basis. However, discriminatory acts that take place at a Christmas party, which is organised or funded by the employer, are highly likely to be held as having been carried out in the course of employment, as it is an extension of the workplace. Forcing employees to dance, making lewd remarks or comments about their dress and becoming over-familiar on the dance floor could all constitute harassment.

However, employers have a statutory defence if they can show that they have taken reasonably practicable steps to prevent the discrimination or harassment from occurring.  Employers should therefore:

  • Ensure that all employees have received training on equal opportunities and the types of behaviour that constitutes unlawful discrimination and harassment.
  • Ensure that up-to-date equal opportunities and anti-harassment policies are in place, which clearly state that conduct at work-related events such as Christmas parties is covered, even if the event takes place out of office hours or off the premises.
  • Ensure that the policies have been distributed to all employees and that they are made aware of and understand the issues covered by the policies.
  • Send a statement to all employees in advance of the Christmas party, setting out the standards of behaviour and conduct expected from them, what types of behaviour are not acceptable and the consequences of inappropriate or unlawful conduct, which in most cases will be disciplinary action up to and including summary dismissal depending on the circumstances of the case. In the statement, remind employees that alcohol should be consumed in moderation and they should not drink and drive.
  • Designate certain senior (sober) members of staff to monitor events on the night to ensure that things do not get out of hand. Senior members of staff should be setting an example to other employees and their behaviour should be monitored in much the same way as other more junior employees.
  • Bear in mind their duty of care and consider limiting the number of free alcoholic drinks and take steps to send an employee home (preferably in a licensed taxi) if their conduct gets out of hand.

Andrew Macmillan, Solicitor, Motor Industry Legal Services

Posted by Sue Robinson on 27/11/2015