Employment Law: Beware of festive frolics

Now we are entering the party season, despite tight social committee budgets reflecting the recession, we can all start to look forward to the festivities and the ensuing workplace gossip that will stretch well into the new year. But if your employees have anything worth gossiping about, be warned: it could constitute harassment.

In August, the Employment Tribunal dealt with the fallout of a Christmas party in 2009 after which an employee discovered she was pregnant. At the party itself, the employee had been seen kissing a colleague and going to a hotel room with him. This triggered gossip back in the office along the lines of "who's the daddy?", which had been instigated by the HR manager. The aggrieved pregnant employee made a formal complaint and asked to be moved to a different office in order that she could avoid working with the HR manager. This request was refused and she was not paid for the whole of February, which she took off while it was decided if she could be relocated to a different office.

The employee resigned, claiming a breakdown in trust and confidence had taken place due to the failure to relocate her to another office. She then brought a claim against her employer, a firm of solicitors, for constructive unfair dismissal, sex discrimination, discrimination on the grounds of pregnancy and harassment. This case ended up at the employment appeal tribunal, which found that sex discrimination, pregnancy-related discrimination and harassment had taken place. The judge explained: "The gossip was about the paternity of her child. It stemmed from the night of the Christmas party… it is connected with the pregnancy." Hence, she had been discriminated against on the grounds of being pregnant.

The employer tried to argue that her award should be reduced on the basis of contributory fault. However, it is no defence that the employee has put themselves in this position. It was not held against the employee that she had put her personal life in the public domain by choice and had provoked the gossip by her own actions.

Therefore, even if you, as employer, feel an employee is behaving promiscuously or inappropriately at the Christmas party, this cannot be used against them later as a defence to any subsequent harassment claim.

This case serves as a timely reminder that problems can arise in the new year following an eventful and action-packed Christmas party season. If you feel an employee is on the receiving end of malicious workplace gossip (whether true or not), you should deal with the gossiping employees and any grievance raised.

Pregnancy protection

The additional lesson to learn from this decision is how to treat pregnant employees. The discrimination in this case was only 'in relation' to the pregnancy, but was still held to be pregnancy-related discrimination. Therefore, while an employee is pregnant they receive enhanced protection, and what may have otherwise be seen as banter or idle gossip may constitute harassment in relation to a pregnant woman. This could result in a successful claim for discrimination on the grounds of pregnancy, meaning a big compensation pay-out by the offending employer.

Without wanting to ruin the fun, it is worth trying to put a cap on the amount of drink at your Christmas party to reduce the potential scandal that may ensue.

Encourage plenty of eating by providing food early on in the evening; this will certainly line your employees' stomachs. Providing entertainment, like cabaret or dancing, may also provide a distraction for employees who may otherwise slowly drink away their evening.

In the aftermath of the Christmas party, be prudent about workplace gossip being construed by the recipient as harassment or discrimination. The Equality Act 2010 provides that age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation are all protected characteristics under which a claim could be brought.

Monitoring how much employees are subjected to 'banter' could prevent a claim for harassment resulting in you, as employer, being found to be vicariously liable for the acts of the offending employees. Even though a Christmas party may be deemed to have taken place outside of working hours, the subsequent gossip will not doubt fall within the remit of vicarious responsibility.