Prior to the pandemic, many employers, particularly large, high profile employers, had begun to approach the annual Christmas festivities with some apprehension. In the aftermath of #MeToo, most employers became acutely aware of the damage of inappropriate behaviour at work events and the damage to reputation that could follow.
Leaving aside reputational damage, there are various claims that might follow and they are by no means limited to discrimination and harassment claims. Failure by one company to properly investigate a complaint by an employee that she had been choked by a colleague at a Christmas party in 2017 resulted in a finding of unfair constructive dismissal being made against them, while vicarious liability for personal injury has repeatedly been an issue following alcohol fuelled seasonal gatherings.
The line where employer responsibility for employee actions at Christmas parties begins and ends has always been something of a moving target - each case will ultimately turn on its own facts. In 2018, the Court of Appeal held that a recruitment company was liable for the actions of its owner and MD when he punched an employee after the Christmas party causing him to fall to the floor, hit his head and suffer brain injuries and serious long term cognitive dysfunction.
However, in April 2019, the High Court found an employer was not vicariously liable for the actions of an employee - this time during a Christmas party - when he lifted a colleague up then dropped her (accidently) on the dancefloor causing serious injury to her back. On this occasion the Court took the view that there was insufficient connection between the errant employee's actions at the party and his role within the company as a researcher to render the employer liable. No-one though wants to have to deal with these types of incidents or run the risk of fighting legal action that might follow.
And then there is the social media risk - whether that comes from an employee or a third party witness to events - when things go wrong photographic evidence can wing its way around the world in a matter of minutes.
With all of these risks it was perhaps not surprising that, prior to the pandemic, many companies reportedly started moving away from the traditional Christmas party and towards accessible activity based events where alcohol is unavailable or more limited. Team building lunches, cooking a team Christmas meal, go karting or indoor crazy golf were all cited as alternatives where employers hope things are less likely to get out of hand.
There are, of course, other ways of approaching the issue than avoiding drinks parties altogether. Pre-pandemic, accountancy firm BDO was reportedly using Christmas party chaperones - two members of staff being assigned the role of staying sober and ensuring everyone else gets home safely - to reduce the risk of any problems arising without removing the option of alcohol. Other companies issued conduct guidelines in advance of the festive season, see the following BBC article.
Concerns over alcohol fuelled issues are not though the only reason for an employer to make a move away from the traditional party set up. The "take a drink" culture that permeates through the Christmas celebrations is obviously not a particularly healthy one, and the move away from alcohol by some employers aligns with an increasing understanding of the importance of wellness within the workplace - something that has only increased over the past couple of years as we have all been affected by the pandemic. It is also more inclusive for any employees who don't drink (which may, of course, be due to health, religious or other reasons). Surveys have suggested that somewhere in the region of 30% of workers don’t enjoy the parties and for some, if they turn up, they do so only to show face and then leave as soon as possible.
It will be interesting to see whether the Christmas party continues to evolve. I suspect though that the restrictions on socialising we have had over the past two festive periods may result in the return of a more traditional Christmas party, at least for this year.
