It is that time of year again where workplaces of all shapes and sizes will be ramping up the preparation for their “Office Christmas Party”. Will there be alcohol? Will there be mistletoe? Will there be Mariah, Wizzard and Wham? Yes please to all of the above. However, crucially, will the staff behave?
The hazards associated with these seasonal workplace soirees are well rehearsed. Granted, there will be crimes against fashion and cat strangled karaoke performances. However, for the employer organising such events, the stakes can be high.
It is not contentious to highlight that these work nights out will, in all likelihood, fall within the concept of “within the course of employment”. What does that mean, and why should we care? An employer is legally liable for any unlawful acts carried out by its staff acting within the course of their employment (known as vicarious liability). So, in the case of the mild mannered office introvert who partakes in one too many eggnogs (or insert beverage of choice) and gets a bit handsy with a colleague, the employer may face a claim. A colleague who is on the receiving end of unwanted conduct of a sexual nature from another colleague has the ingredients of a sexual harassment claim. The individual who conducted the harassment can be sued. However, the employer (which will in many cases have deeper pockets) can also be sued.
Can the employer defend such a discrimination claim? Yes, it can. However, the defence is a high bar because the employer must establish that it took all reasonable steps to prevent the incident in question from happening. To that end, the employer might have created a very thorough and detailed policy on equal opportunities or anti-harassment and communicated this to staff. The employer may have given equality and diversity training to staff. Some employers will also issue a pre-party, buzz-kill, memo reminding staff of the expected standards of conduct, and the possible consequences for those who stray from those standards. The employer should also ensure that policies are regularly updated and that training is refreshed (don’t allow these to become “stale” which was critical in one recent case where the employer failed in its defence). A wise employer will also deal with any complaints promptly and appropriately.
Thinking ahead to 2024, the playing field will be slightly different. Legislation will take effect next October which imposes a duty on employers to take reasonable steps to prevent sexual harassment. An employer which fails to do so may face enforcement action from the Equality and Human Rights Commission. In addition, in the event of a successful claim for sexual harassment, the Employment Tribunal can increase compensation by up to 25% where the employer has failed to comply with this statutory duty. We will have to wait to see how this new duty is interpreted and applied by the courts and tribunals but the “all reasonable steps defence” will still apply. Will it be possible for an employer which fails in the all reasonable steps defence to argue that it nevertheless took reasonable steps? One for the lawyers to debate. Regardless, employers should always strive to take all reasonable steps to prevent sexual harassment (and other forms of discrimination) in the workplace, otherwise it may not just be a sore head which could follow.