Partying through the pandemic

30th November 2021

We’re nearing the end of what has been another rollercoaster of a year. However, unlike 2020 when the Christmas party was relegated to the virtual world and took the form of a Cocktail masterclass or a PowerPoint quiz, this year many employers are all set for an in-person event to celebrate the slow return to ‘normality’ and to thank employees for their efforts during what has been a difficult 20 months or so.

The excitement of the annual Christmas party is upon us once again but not only have we got the usual Christmas party concerns to contend with, we cannot deny that the lingering C word will still impact the event, in one way or another.

So, what do employers need to be thinking about in the run-up to the big event?

Is the party still ‘work’?

Wherever an organised work Christmas party is held, the venue is still considered to be an extension of ‘the workplace’, even when held out of office hours and outside of the workplace. Employers could therefore be vicariously liable for any issues which arise, such as acts of discrimination or injuries.

Whether or not the after-party is considered an extension of the workplace is rather fact specific. While an after-party is often entirely independent of the main event and of an entirely different nature to the earlier company-organised party, there have been instances where an employer has been held vicariously liable for an injury caused by one of its employees during the after-party. In a Court of Appeal decision in 2018[1], an employer was held vicariously liable for an injury caused by a managing director punching his subordinate following a work-related discussion at an after-party. This act was considered against the background of the earlier party and so there was found to be a sufficient connection between his wrongful act and the employer.

To steer away from any risk:

1) in advance of the party, issue a reminder to attendees that the Christmas party is an extension of the workplace and remind them of the standard of conduct expected and the consequences of any misconduct; and

2) senior managers may want to distance themselves from any unofficial after-parties and, at the very least, make it clear that if colleagues decide to move on to other venues or continue after the official event ends, this is not endorsed by their employer.

The invite, the food, the venue

The “Christmas party” varies from business to business – it may be a smaller team event at a local restaurant or bar, or it may be a larger, company-wide event held at a large event space. While the venue itself is likely to have conducted a risk assessment, employers have a duty of care towards their employees and should also plan ahead and ensure they have conducted their own assessment to avoid the risk of claims. The risk assessment should include examining the venue for hazards as well as having procedures in place for any foreseeable injuries (such as slips or falls). We also cannot ignore the risk that Covid-19 presents when we’re thinking about the venue and the overall set up of the party. More on this below under ‘Partying through the pandemic’.

Employers should also ensure that they avoid discriminating against the attendees (or non-attendees, as the case may be). Invites should not just be given to full-time, permanent employees – invites should extend to agency workers, fixed-term and part-time staff, as well as those on leave, such as maternity and paternity leave. Moreover, food and drink options should take religious requirements into account – so Halal and vegetarian/vegan options should be available as well as non-alcoholic drinks.

Christmas party drama

If there is an incident on the night and a complaint is made, employers should deal with it quickly and fairly (but not necessarily immediately, particularly where alcohol is involved!), regardless of whether the incident occurred at the main Christmas party or at the after-party. As for all workplace incidents, a thorough investigation should be conducted in line with company policy. Failure to follow a full and fair process could result in additional complaints or could even lead to employment claims.

Partying through the pandemic

As recent developments with the Omicron variant have shown, we’re not out the other side of this yet. Employers organising their Christmas party this year cannot ignore the risks associated with Covid-19, and will need to keep pace with developments to ensure that party plans remain appropriate. At the time of writing, some considerations include:

• Covid measures – Employers should consider what procedures they currently have in place to manage the risk of Covid-19 in the workplace. If organising a group in-person event would be at odds with current procedures, then a Christmas party this year may be a non-starter or your risk assessment may require an update. If the party’s got the green light, employers should encourage the same hygiene practices that are in place in the workplace, such as frequent hand-washing and maintaining social distancing and remind employees to stay at home if they feel unwell. Employers can also ask the party’s venue for their Covid risk assessment and share this with attendees so that they are fully informed of the procedures in place.

• Vaccination status and negative tests – If your Christmas party is to be held in a third-party venue, it may be worth checking with the venue whether they have put any Covid status requirements in place (such as a requirement for attendees to show their Covid status on the NHS Covid pass before entry). While this may only be relevant for the larger venues (such as nightclubs), if the venue does have its own requirements, a vaccination/testing requirement imposed by the employer may not need exploring any further. If there is no venue-imposed policy, but staff are cautious, what can employers do? Mandatory approaches to vaccinations and testing are still uncommon in the workplace, particularly outside the health and social care sector. Employers could opt to make double-vaccination and/or a negative lateral flow test result a condition for attendance, but this is not without risk, the obvious one being that of indirect discrimination claims. While the risk is far greater if the policy mandates vaccinations or testing to attend the workplace during the usual working week (as the potential detriment is far greater), employers should still tread carefully if this is an approach they wish to take. A less risky approach here would be to consider simply encouraging these steps – i.e. encouraging employees to obtain their second vaccination or booster ahead of the event or asking them to voluntarily take a lateral flow test before attending.

• Plan B – We know that another lockdown in the UK is not currently predicted, however we do know the government could decide to bring in its “Plan B” measures, or others in light of Omicron developments. These might include compulsory face coverings and Covid passports for entry to bars, restaurants, large events or nightclubs. If Plan B is implemented, employers will need to consider if they also need a Plan B when it comes to the Christmas party… Employers should re-assess the risk in the circumstances and consider other options if it is determined that the in-person event would not be safe for attendees – a return to the virtual party? Postpone until the New Year (or until next summer when it can be held outdoors)?

On behalf of all of us at Walker Morris, we hope that you and your team are able to celebrate Christmas and making it through another tough year in some form or another! If you are the designated Christmas party organiser this year and have any queries in respect of your proposed party plans (or the party has been and gone and a complaint has been raised), please do not hesitate to contact the Employment team for advice.

[1] Bellman v Northampton Recruitment Ltd [2018]