Most employees have a sense that discrimination in the office is unlawful – but what is less appreciated is that the Equality Act 2010, which outlaws discrimination and harassment in England and Wales, also applies where individuals are acting in the course of their employment outside their workplace. This could include getting into the festive spirit at the office Christmas party, and in some circumstances it may also include antics at post-Christmas party drinks.
The Christmas bash is often the only work event that embraces everyone in the business, and throws together individuals with polarised social, religious and political beliefs. Toss in some free alcohol and a dash of end of year fever and you have the perfect cocktail for an inappropriate comment or gesture which could lead to an employment tribunal claim.
The trouble is that the Equality Act does not necessarily distinguish between acts done in the office at 9am on a Monday morning and events that take place in the early hours at a Christmas party. More onerous still is that an act of harassment does not have to be intended to fall foul of the Act if it relates to sex, race, disability, age, sexual orientation, religious belief, gender reassignment, pregnancy, marriage or civil partnership.
The classic example is where a person makes a 'joke' about, say, sexual orientation; three people in the group laugh, but the fourth feels humiliated. Although the person who made the joke did not intend to discriminate, the employer could still be liable (as it is vicariously liable for the acts of its employees done in the course of employment), in addition to the individual who made the joke.
So 'harmless banter' at the office party could lead to an individual being on the receiving end of a formal grievance, being dismissed for gross misconduct, and being a defendant in a tribunal claim (along with their employer) and ordered to pay compensation. Rather a sobering thought.
Under the Equality Act employers have a defence if they can prove they took all reasonable steps to prevent employees from committing discriminatory acts. Employers should therefore consider taking the following steps before the Christmas festivities begin:
- ensure equal opportunities policies are up to date
- at the office party, and other social events, offer a selection of food and drink that caters for different religions/ cultures
- circulate clear written guidelines on equal opportunities and harassment, and the disciplinary sanctions that could result from breaches of the rules; and warn against inappropriate behaviour over the Christmas period, including inappropriate secret Santa gifts and sporting offensive fancy dress costumes
- comply with health and safety obligations - employers are responsible for the health and safety of employees both during, and on their way home from, the office party
- remind staff about the social media policy, and the consequences of posting pictures online that could infringe an individual's privacy rights and bring the business into disrepute
- be clear about expectations regarding absence or a late start the following day – and ensure employees are treated consistently
- ensure post party complaints are dealt with seriously and in accordance with company procedures
The anti-discrimination laws were not introduced to stop people having fun – but rather to allow everyone to feel at ease in their workplace and when socialising with colleagues. After all, Christmas time should be the season of goodwill for everyone.