In case (UD 886/2012) an employee was dismissed for assaulting a colleague and security person at their Xmas party in the early hours of the morning. The employee claimed he had been provoked by his colleague stubbing out his cigarette on him and there were "two of them in it" and that his colleague had admitted this. The colleague was not disciplined by the Company and denied provoking the claimant and said he would have immediately apologised if he was aware that his cigarette had accidentally burned the claimant. The claimant accepted that an altercation had occurred but disputed the witness statements that had been put forward. He also outlined that a few days after the incident had occurred, a director of the Company had told him to resign as he would be fired anyway and as a result of this he believed the subsequent disciplinary process to be a fait accompli.
CCTV footage of the night was viewed by the EAT and deemed not to be conclusive. Whilst the EAT accepted that a physical altercation had taken place and the employee's own behaviour had contributed to his dismissal, they noted that the investigation and disciplinary process followed by the Company had not been perfect and they had not disciplined the other party involved. An award of €25,000 was made to the employee.
This case is just one example of a very costly Xmas Party and employers need to understand that social events particularly at Xmas time have the potential to provide a context for inappropriate behaviour that could have serious repercussions. It is therefore important that employers are fully aware that they can be held liable for anything done by an employee in the course of employment and that a work related social event will be considered to be an extension of the workplace.
It is also important that employers must remember that the parameters of sexual harassment and harassment as defined legally under the Employment Equality Acts 1998 - 2015 are both broad and subjective, and very much concerned with the impact of the alleged inappropriate behavior and not what was intended by the alleged perpetrator..And the scope of an employer's liability may even apply to Secret Santa activity. In a 2013 Circuit Court case, a present of red Santa boxer shorts given by a female garda to her male colleague as part of 'Secret Santa' in their workplace was referred to in proceedings in Letterkenny Circuit Court. The scenario was referred to as evidence that the female colleague may have been complicit in the 'banter' in the office in circumstances where she alleged that the male garda had sexually harassed and assaulted her.
So what should employers do to minimise the possibility of an expensive payout after the Xmas Party?
- Remind staff that normal workplace policies will continue to apply in respect of conduct at the party including the Dignity at Work &Social Media Policies and that the Disciplinary Procedure will be invoked for breaches. This should specifically include employees being reminded that they should not post any photographs or materials on social media sites which could negatively impact on the reputation of the employer. In the case of Dublin Bus v McCamley the Labour Court held that derogatory comments made by a worked about a colleague on Facebook outside of working hours did fall within the legal definition of harassment and the working relationship provided the connection and context for the comments being made. However the Court also found that the Dublin Bus had taken reasonable steps to prevent the inappropriate conduct by having in place a policy on suitable conduct, even though it did not specifically deal with harassment via social media.
- Put a finishing time on the party;
- Ensure non alcoholic drinks and plenty of food is available;
- Investigate fully any incidents that happen and ensure all involved parties are included in any review; and
- Ensure that any managers who may have witnessed or been involved in incidents or altercations are excluded from any resulting investigations;