How to avoid a Christmas employment law blunder

05 December 2013

The festive season is fast approaching and as well as the stresses and strains of family festivities, it can also be fraught with problems from an employment law perspective for employers and employees alike. Lincolnshire and East Yorkshire solicitors, Wilkin Chapman LLP, have some advice on the potential pitfalls and perils of one workplace Christmas tradition, as Jane Eatock, partner, explains:

“It’s the time of year when many HR departments send out dire warnings about the dangers of the office Christmas party.  Employers must be alert to their potential liability for drunken behaviour amongst their staff - will ‘Andy from accounts’ once again make inappropriate advances and will ‘Mandy the manager’ tell her team what she really thinks of them after too many Babychams?

“In an age of austerity festivities may be slightly more restrained, but one enduring ritual is the public humiliation of a present from ‘Secret Santa’.  You may think this is really some harmless fun and banter creating a warm glow amongst the team and some useful facebook pictures of the MD wearing his “sex god” novelty apron. However, could it be an event which is more likely to give rise to serious grievances and potential discrimination claims?”

There are now 9 “protected characteristics” under the Equality Act 2010 – employers must not discriminate on ground of race, sex, religious or philosophical belief, age, marriage and civil partnership, disability, sexual orientation, gender reassignment and pregnancy and maternity.

Employers will often have clear policies in place confirming their commitment to equal opportunities and their disciplinary procedures will confirm that discriminatory behaviour by employees will not be tolerated.  Most organisations are aware of the need to create a working atmosphere which does not offend various sectors of the work force – calendars of naked girls have all but disappeared even from back street garages, IT policies prohibit lewd or racist emails and managers are sensitive to request for time off for religious festivals etc.

However, all this hard work can be undone if inappropriate gifts appear from Secret Santa’s sack.  What may be intended as banter or good humour by the gift-giver could be perceived by a recipient as being ‘intimidating, hostile, degrading, humiliating or offensive’, which, perhaps, when combined with previous comments or conduct may give rise to an allegation of harassment.

Jane adds:  “In a much publicised case several years ago, a police officer gave a Muslim colleague a bottle of wine and a packet of bacon in a Secret Santa. The individual wasn’t particularly offended but others present were and the culprit was forced to resign.  Sexually provocative presents - the ubiquitous chocolate willy or sexy underwear – may well be offensive; it’s not enough to suggest that it’s just ‘banter’ or that the recipient can’t take a joke.

“Even where something does not offend against the prescribed ‘protected characteristics’ problems can still arise – gifts such as deodorant or diet books can cause lingering resentment.  Individuals would be unlikely to give such gifts to their family and friends and work colleagues are entitled to no less respect.”

A recent survey highlighted that 73% of companies still thought Secret Santa was a good idea.  Although, there is no reason why it should be abandoned, a simple reminder to employees to think carefully about the individual they are buying for would be a sensible precaution.  As is setting a low financial limit to avoid any embarrassment and making it clear that participation is optional.

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