‘Tis the season to…beware of the Virtual Christmas Party!

21st December 2020

HR teams and Senior Managers may have thought they would have a year off from having to deal with any unwelcome office party antics this year. With most office workers working from home for the best part of this year, many companies will be turning to online festivities rather than the in-person celebrations of Christmases past. Employers and employees should not forget however that inappropriate behaviour can still take place online, as it can in person, and this carries with it the same potential disciplinary consequences as well as giving rise to possible discrimination, harassment, and victimisation employment tribunal claims.

Home-working has blurred the boundary between work and personal life and the more casual environment of a home office, kitchen table or the living room sofa may lead to office etiquette being forgotten. Virtual communications also give a sense of anonymity and it is easy to forget that there is a real person on the other side of the screen, which risks people acting in ways they would not usually do so.

Who will be liable for unlawful conduct?

The Equality Act 2010 prohibits discrimination, harassment and victimisation and applies to employers as well as individuals who are acting in the course of their employment outside the workplace.

Employers may be found to be vicariously liable for the acts of their employees. Employers will have a defence to acts committed by employees during employment if they can show that they took “all reasonable steps” to prevent the employee from doing the discriminatory act.

What should employers and employees do to minimise the risk of employment tribunal claims being brought or disciplinary action being taken?

  • Invite all employees to any virtual events. Ensure that all members of staff are invited, including those on furlough, sick leave, or family friendly leave, so that no one feels excluded or left out. However, do not put pressure on employees to attend online events if they do not want to, or would not normally attend in person. Remember that not everyone celebrates Christmas or even enjoys socialising in larger groups and employers will be exposing themselves to complaints of discrimination or harassment if they cannot find the right balance between including all staff but ensuring that no one feels pressured to attend.
  • Remind employees of acceptable behaviour. Make employees aware that company policy regarding bullying, harassment and discrimination still applies and that certain behaviour is unacceptable, regardless of whether this is in person or behind a screen in a more relaxed informal environment in which alcohol is being consumed. Couple this with employees being in their home environment means that their guard may be down and inhibitions may drop more readily than otherwise. Policies about not becoming intoxicated at work events still apply, even though virtual work parties take place in employees’ homes. Any music played or images shared as part of online party quizzes or games etc. must not be offensive, discriminatory, or inappropriate. Remind employees that any incidents of unwanted or inappropriate conduct or comments will be addressed swiftly and fairly and in accordance with the usual disciplinary procedure.
  • Alcohol and gifts. If sending alcoholic gifts to employees, check first whether this is appropriate or whether a non-alcoholic alternative would be more suitable. Not everyone drinks alcohol, whether it be for religious or personal reasons. If teams are organising Secret Santa gifts, remind staff that some gifts may be offensive to the recipient, even if funny to the gift giver. Failure to be alive to these issues may result in complaints of religious discrimination or bullying, harassment, discrimination, and victimisation. As above, make sure that everyone is included if you are going to send gifts to employees and remind senior management that they should include all their team members in Secret Santa, unless of course the individual does not want to take part. Set the cost of the gift at an acceptable level for all members of staff regardless of their level of seniority or socio-economic background so that all members of staff who want to can participate.
  • Social Media posts. Remind employees about your social media policy and that any derogatory or offensive comments about your organisation or fellow employees may lead to disciplinary action if these comments could bring the company into disrepute or constitute bullying, discrimination, or harassment. Also be aware that not everyone is comfortable with their photo being taken, or even if they are, they may not want their picture being put on the internet. There could be GDPR issues if employees do not consent to this. It would therefore be wise to remind staff that if they want to take a screen shot of the Zoom party mid-celebrations they should check that everyone attending is happy with this. It is best to check this at the beginning of the party before any alcohol has been consumed.
  • The day after the night before. Consider whether employees will be allowed to log-on later than usual, especially if they started working later in previous years. Working from home can make it harder for employers to monitor employees. If you think that someone is hungover or feigning sickness, rather than being genuinely unwell, make sure you have enough evidence to prove this, as you will need to have a reasonable belief that this is the case before taking any disciplinary action.
  • Deal with any complaints of unwanted or inappropriate behaviour promptly. Employers should ensure that any reports of unwanted or inappropriate behaviour is dealt with in a timely manner and under the correct company policy or procedure.

Authors: Michelle Chance, Employment Partner and Louisa Hartley, Employment Solicitor at leading City law firm, Rosenblatt Limited.