Policies relating to health and safety, dignity at work, bullying and harassment and grievances are applicable for these events and should issues arise these should be dealt with using the applicable policy. Should it be found that an employee has transgressed in terms of his/her actions or behaviour at one of these events, then it may be appropriate to deal with this within the organisation’s disciplinary policy.
It is advisable that employers remind all staff of their responsibilities under these policies in advance of the event but in any case, the follow up actions of the organisation to any incident or allegation should be the same as if the event had occurred at the workplace.
It is also important that an employer adheres to the principles of natural justice to ensure as far as possible that the employee cannot argue that any investigation findings were flawed and that any subsequent action on the part of the employer is unfair or unwarranted. At any third party hearing the investigations process can and will be scrutinised and case law in this area has shown that a flawed investigation will impact the employer’s chance of success.
John Graham v Newlands Cross Hotel, T/A Bewleys Hotel Dublin Airport (UD 886/2012)
In this case, a hotel employee was dismissed following an altercation with a fellow employee and a security man at the company Christmas party. The complainant told the Tribunal that he had consumed alcohol and was in the smoking area with two colleagues when he felt his hand burning and turned to see a co-worker, with a cigarette. He submitted that his co-worker had stubbed his cigarette out with his hand. He sought an apology which was not forthcoming and with his co-worker provoking him, he charged at him. Some pushing followed, and a bystander was knocked to the ground. He moved away to the bar when he was approached by a man in a black jacket who asked him to leave. In a panicked reaction, he leaned forward and pushed the man. Due to his state of mind, he was not aware that the man who approached him was a security officer.
By letter, on January 18 2011, the employee was requested to attend a disciplinary meeting two days later to discuss incidents regarding his conduct at the Christmas party. The head of HR and the group purchasing manager were in attendance. The employee refused the offer of a representative, so the head of HR provided a work colleague to attend the meeting with him.
The co-worker denied provocation. He insisted that if he had become aware that his cigarette had burned the complainant he would have apologised. The doorman gave evidence of the employee's ‘assault’ on him. He did not witness the earlier incident. According to the Head of HR they immediately reviewed the CCTV footage.
Two allegations were contained in the letter inviting him to a disciplinary meeting:
- That he engaged in physical violence and violent and threatening behaviour against members of staff and others.
- He failed to cooperate with the investigation to date.
The Tribunal said: “The CCTV footage was not completely conclusive and did not provide the Tribunal with any clear, or accurate evidence of what occurred on the night in question. The claimant accepted that a confrontation did occur followed by an altercation and he was not proud of his behaviour. The Tribunal do not condone violence in the workplace. However, it is noted that the claimant was the only employee disciplined following the incident adding it needed to be stated that the claimant contributed to his dismissal by his behaviour on the night.” The worker was awarded €25,000 for an unfair dismissal (UD 886/ 2012). This outcome highlights in no uncertain terms the importance of adhering to company policies already in place.
Can a social gathering of work colleagues in an unofficial social event be regarded as a work-related event?
A question arises as to when an event can be regarded as work related and when an organisation no longer has responsibility. Can a social gathering of work colleagues in an unofficial social event be regarded as a work-related event or if an incident were to occur after a work social event has ended is it still regarded as work related? Recent cases law has demonstrated that this is a grey area. However if the incident is regarded as sufficiently serious it is advisable that the organisation conducts an investigation in line with its policies.
A Manager vs a Retail Store (ADJ-00004589)
A work colleague made a complaint regarding the complainant’s behaviour at a leaving party of one of his colleagues. It was an out-of-hours meeting organised by staff. The complaint concerned the complainant making a derogatory remark about a colleague.
The employee was dismissed by letter on 11 March 2016 following an investigation into a complaint that he had breached the respondent company’s Policy on Dignity and Respect in the workplace. All staff were trained in this policy and were aware of it.
The employee submitted that the remark was made in the context of an ongoing slagging culture among the staff of the company. The said ‘culture’ was thriving and vibrant, not only out of hours but more importantly during normal working hours. Insulting and pejorative words related to sexual orientation, ethnic origin or mental qualities were used at the time between staff members of all levels on a daily basis without anyone taking insult.
He said the outing was not ‘an associated event in the course of employment’. It was not organised or paid for by the company, nor was it an official ‘work outing’. The alleged behaviour, a single isolated incident, even if considered inappropriate (which is denied) could only be classified as an ‘affront to dignity’. The dismissal letter did not explain why ‘summary dismissal was the most appropriate sanction’. The former employee had argued ‘inter alia’ that a dismissal over a single incident was disproportionate given his spotless career with the company. He further argued that a ‘slagging culture’ existed amongst the staff.
In consideration of these arguments, the WRC adjudication officer observed that the whole purpose of a Dignity at Work Policy is to curtail such a culture and to ensure it did not get out of hand. The former employee's colleague took exception to his remarks. The complainant held a senior position and should have known better. The respondent had no choice but to institute a dismissal if the Dignity at Work policy was to mean anything. The dismissal was not found to be unfair.
Bellmen v Northampton Recruitment Ltd  EWHC 3104 (QB)
In this case, the court had to consider whether an employer should be liable for the actions of its managing director, who had attacked an employee at drinks following the official Christmas party. The claimant (55) was a sales manager. His friend was the managing director and shareholder of the company. All the employees and their partners were invited to the Christmas party. At the end of the night, around half the guests went back to the hotel where many of them were staying which was not a pre-planned extension of the party.
The group continued to drink and chat, with the understanding that either the managing director or the company would be picking up the bill. The conversation eventually turned to work matters and the claimant brought up the recent appointment of a new employee, who was apparently being paid more than anyone else. The managing director began to shout and punched the claimant. Despite efforts of others to stop the managing director, he punched the claimant again and knocked him unconscious. As a consequence of the resulting brain injuries, the claimant was unlikely to return to paid employment and lacked the legal capacity to litigate or manage his affairs.
The UK High Court considered the case law on vicarious liability. It also noted that the accused was the managing director of the company, and in effect ‘the directing mind and will’ of the small company who should have also overseen the smooth running of the party. While it was not a disciplinary matter not to attend the party, not to do so would have attracted comment and the judge found there was an expectation on employees to attend. However, the organised Christmas party had ended, and with it any expectation or obligation on employees.
Even if the company did pay the bill, there was no increased risk of confrontation arising from the additional alcohol as it was so removed from employment. A conversation that turned to work matters could not provide a sufficient connection to work to give rise to vicarious liability against the employer.
The High Court held that as a principle of social justice and economic policy, there was insufficient connection between the managing director's position and the assault for the company to be held liable.
As everyone gets into the swing of party season the recent cases summarised above illustrate the responsibilities on employers that extend to a Christmas night out. Vicarious liability is the principle that an employer can be held liable for the actions of the employee. The scope of employers’ potential vicarious liability is considerable even at work related social events outside the workplace. It follows therefore that employer’s must not only do all that is reasonably practicable to implement safeguards to protect health and safety, dignity at work, to prevent bullying and harassment but also address complaints or concerns expeditiously.
Ibec Knowledge Centre
Thursday, 14 December 2017