is a time of fun, cheer, and work Christmas parties. These are (sometimes)
entertaining events, where employees can let their hair down after a hard year
of work, and celebrate the festive season. However, Christmas parties can
occasionally encourage rather bad behaviour, not least because alcohol can be
consumed in rather large quantities, giving employees Dutch courage to do
things they might not otherwise do (and will consequently live to regret… at
least the next day, or longer if an employment tribunal claim ensues).
problem is that during Christmas parties, when employees’ valiant attempts of
doing something profound, turns out to be profoundly stupid, is that their acts
are capable of being treated as something “in the course of their employment”,
and therefore treated as the employer’s actions (see for example section 109(3)
of the Equality Act 2010).
Are employers liable for acts that
occur during a work Christmas party?
Chief Constable of Lincolnshire Police v Stubbs  ICR 547, après
work drinks in the pub with fellow employees were deemed to be an extension of
the work place. Consequently, the employers in this case were found liable for
the employee’s unwelcome amorous advances.
considered that events immediately after work, or those related to work
(specifically using the example of a leaving party) were extensions of work.
Consequently, employer organised Christmas parties are extremely likely to fall
within the definition of something “in the course of their employment”.
However, if an employee organises a party outside the realms of the workplace
for Christmas, not approved by the place of work, whether the party will be an
extension of work is more complicated, and that will turn on the facts of the
The Statutory Defence
of the Christmas party season, all employers should be aware of, and take full
advantage of, the statutory defence: The statutory defence is a line of
argument which is underutilised by Employers, but one which can be very
statutory defence is at section 109(4) of the Equality Act 2010, which states:
“(4) In proceedings against A’s employer (B)
in respect of anything alleged to have been done by A in the course of A’s
employment it is a defence for B to show that B took all reasonable steps to prevent A—
from doing that thing, or
from doing anything of that
Canniffe v East Riding of Yorkshire
Council  IRLR 555EAT demonstrates that to successfully establish the statutory defence, the Employer
must firstly show what, if any steps, they took, to prevent their employee from
doing the act or acts complained of in the course of their employment; and
secondly, show that there were no other reasonably practicable actions they
could have taken. It is irrelevant whether those steps the Employer took were
actually effective. Rather, Employers merely need to show that they were the only
reasonable steps they could have taken, and they took them. But, the Employer
should show that they anticipated that the actions would be effective (see: Croft
v Royal Mail Group plc  EWCA Civ 1045,
 ICR 1425).
if employers reminded staff of the harassment and discrimination policy ahead
of the Christmas season, and re-iterated via email to each employee and through
notice boards that harassing and discriminating behaviour at Christmas parties
would be absolutely not tolerated, then the employer will go some way to
satisfy any potential employment tribunal that they have fulfilled the
statutory defence and should not be vicariously liable.
Nixon v Ross Coates Solicitors and
another UKEAT/0108/10 shows that employers are well advised
to take grievances seriously, in order to appease the tribunal that they meet
the statutory defence: Here, a female employee was seen kissing another employee
during a Christmas party. She then was seen going to a hotel room with the same
employee, and after the Christmas party, rumours of pregnancy flew around the
office. Not only did the HR manager gossip about the pregnancy and whether the
other employee was the father, but a grievance and request to move offices was
not granted. Unsurprisingly, the employer was liable. However, had: the
appropriate policies been circulated ahead of the party; boundaries been drawn
before the Christmas party about appropriate behaviour; the HR manager not gossiped,
and took the grievance seriously, it is likely the case would have turned out
an employee`s perspective, the main ways
to defeat a statutory defence argument, are to show that the actions taken did
not amount to taking “all reasonable steps,” that there was more that could
reasonably have been done and/or that the Employer could never have
contemplated that the steps they did take would be effective (see: Croft).
an employee, who has been harassed/ discriminated against, should consider
naming the perpetrator in any ACAS Early Conciliation application/ and/or
Tribunal claim, in case the employer is able to satisfy the statutory defence
(providing that the employee is good for the money!), but should certainly
consider it if during the ET3, the employer has specifically raised the
The Bastard Defence
Bastard Defence (“I did not treat you less favourably because of a protected
characteristic, rather, I am a bastard employer, and treat everyone equally
badly”), which can act as a bar in establishing less favourable treatment, is
an extremely unattractive argument to run, not least because the Employer will
usually be portrayed in a negative light. However, it can be extremely
effective in preventing the Employee from succeeding in their claim.
defence should only be raised by an employer if it really can be substantiated,
and only in circumstances where derogatory language or actions are not specific
to the protected characteristic. It can be an extremely useful defence, which
may facilitate settlement, if there is any truth to it. Further, if the case
involves an industry where “banter” is not so frowned upon (for example, a
garage or a pub), it may be that the employer will not be afraid to run such a
may be difficult to raise in the context of claims arising out of events which
occurred at a Christmas party, but not impossible. For example, if a manager
indiscriminately referred to a number of employees as “stupid idiots” during a
Christmas party, who all had different characteristics, then the employer is
likely to establish that they were just a bastard employer, and not
discriminatory in any way.
acting for the employee, you would be well advised to first try to show that
the conduct in question is specifically related to the protected
characteristic, second to lead evidence that the behaviour is targeted rather
than general and also, to appreciate that you may have more power than an employer,
in that you are able to point to negative publicity as an incentive to achieve
a higher settlement figure.
not a memo filled with Christmas cheer, Employers are well advised to send
emails to employees before Christmas parties, and indeed, before the festive
season generally, reminding them that discriminatory or harassing behaviour
will not be tolerated, so that they can benefit properly from the statutory defence.
Moreover, should a grievance be lodged following the Christmas party, the
employer should ensure they take them seriously. If all else fails, employers
should not forget that they potentially have the bastard defence open to them,
though this is of course a defence of last resort.