Christmas revelries and rabbles
The 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?
Following 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.
They 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 case.
The Statutory Defence
Ahead 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 effective.
The statutory defence is at section 109(4) of the Equality Act 2010, which states:
from doing that thing, or
from doing anything of that description”.
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,  IRLR 592,  ICR 1425).
Therefore, 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 very differently.
From 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).
Likewise, 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 defence.
The Bastard Defence
The 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.
This 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 case.
This 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.
If 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.
Whilst 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.
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