For many employers in 2020, Christmas parties were another casualty of the pandemic. They either hosted a remote party via Zoom or Teams, or substituted vouchers and gifts to mark the work put in by their employees during what was a very hard year. As something approaching normality has returned to the UK economy, employers are now considering their options for Christmas 2021. In this briefing, specialist litigation and commercial law firm rradar takes a look at the issues to consider.

There are several factors to consider when making plans for this year’s Christmas party, including the safety concerns of vulnerable employees, the increasing rate of infections across the country and the possibility of the Government introducing Plan B, whereby a mask mandate and other restrictions are brought back in. The worst outcome for businesses would be a new lockdown, which – unfortunately – cannot be entirely ruled out.

For most employers, there are three main options, in reducing order of risk:

• Hold a party at an external venue.
• Hold a party in the workplace.
• Hold a remote party with vouchers and gifts for staff (as many did in 2020).

For external venues, there is also the issue of COVID-19 passes being required for entry, either because of the policy of the venue or if Plan B is initiated; this could lead to some unvaccinated or part-vaccinated staff being excluded. For reasons outside their control, some staff may not have had two vaccines yet; some may only have had one. For example, someone who has just had a baby may only be starting their vaccination course.

The NHS COVID pass should show if someone is exempt for medical reasons, but for other reasons like religion or philosophical belief, that wouldn't show up on the pass. This could have the effect of a discrimination claim under the Equality Act 2010 for less favourable treatment if the person in question is excluded from the venue.

For parties held in the workplace, the employer will need to take steps to assuage the concerns of potentially vulnerable employees. Such measures could include lateral flow tests, risk assessments, social distancing, hand sanitising measures, cleaning of the premises, etc. so the venue can be guaranteed (as far as is reasonably practicable) COVID-secure.

Employees should be informed of the measures taken for their safety and if they decide that they still don’t wish to attend, that will be their decision.

If an employee decides that the party is going to be a problem for them to attend because of this, they should be allowed to opt out with no detriment to themselves, direct or indirect.

Inclusivity
The party also needs to be inclusive; this means that nobody should feel excluded on the basis of a protected characteristic. Two particular protected characteristics could cause issues:

Religion
Despite the name, the religious element of Christmas parties is either very small or non-existent. They aren’t really about celebrating a particular religion; they’re generally seen as a morale-boosting exercise, a thank-you from the employer to staff for all their efforts during the year. To attempt to cancel the festivities because of perceived potential offence to people of other religions would be hard to justify (and could end up, unintentionally, increasing resentment against those people).

The issue hasn’t been raised in the courts (which may mean it’s less of a problem than nervous employers might think) but it’s possible that a non-Christian employee might argue that the office Christmas party discriminates against them because their own religious festival is not also celebrated by the employer to the same degree.

However, it’s unlikely that an Employment Tribunal would decide that the holding of a Christmas party in itself counts as discrimination against non-Christians under the Equality Act 2010.

The obvious answer is to ask the relevant employees before making plans for any party or celebratory event. It’s likely that they would reply that they had no objection whatsoever (but might appreciate being asked).

Issues to consider include:

• The suitability of the venue – does it have associations with groups or activities that people of certain religions might find offensive?
• The timing of the party – certain evenings will be a problem – Friday nights extending into Saturday for Jewish people, for example.
• The theme of the party – although it might be thought quite innocent, there is always the risk that one or two employees might take things too far and end up causing offence to a racial or religious group. The employer should state clearly that such actions are expressly prohibited and that if in any doubt, employees should check with HR to see what is permissible.
• The range of drinks on offer – although most establishments provide a selection of alcoholic and non-alcoholic drinks, employers should ensure that there is no pressure on employees to drink alcohol if they don’t want to.
• The menus – dietary requirements differ depending on religion. Employers need to ensure that the menus on offer for staff include vegetarian and vegan options and that meat options don’t inadvertently rule out people of certain faiths.

One final point – as with the issue of COVID-secure status for workplace parties, if an employee decides that the party is going to be a problem for them to attend because of any of the foregoing issues, they should be allowed to opt out with no detriment to themselves, direct or indirect.

Disability
Another factor that needs to be considered when looking at inclusivity is the needs of disabled employees. Whilst some venues are modern in construction and will have adjustments built in for ease of access for disabled people, other venues might be in converted premises dating back many years and will be less accessible, putting disabled employees at a disadvantage. One solution to the accessibility issue is for a disabled member of staff to be included on the planning team and to visit the proposed venue ahead of time to verify that there will be no problems.

Harassment
One topic that always recurs in the conversation around Christmas parties is conduct and harassment (defined as unwanted verbal, non-verbal or physical conduct that violates the dignity of a person or creates a hostile, degrading, humiliating or offensive environment) which can even include commenting on someone's clothing or appearance.

Given the presence of alcohol and the misconception that the party does not count as “work", some people can forget themselves and at times behave highly inappropriately, particularly if tensions that have been simmering during the year finally come to the fore, with inhibitions lowered because of alcohol.

The separation between work and non-work will be more marked if the party is held at an external venue rather than the company premises.

It would be a good idea for the employer to set out well ahead of time to all employees that Christmas parties are an extension of the workplace, regardless of where they occur.

This would require conduct to be kept the same as it would be in the workplace, a clear reminder of what is and is not acceptable behaviour and the consequences that could occur, such as disciplinary action potentially leading to dismissal for the most serious of offences.

After the party
If the party is being held at an external venue, it is likely that hotel accommodation will be available nearby to avoid employees having to travel unsafely. For those parties held in urban workplace locations, public transport options will likely be available. For workplace parties where the location is more remote and less well served by public transport, employers should make sure that party attendees have a safe way of getting home and don’t lay themselves open to the risk of drink driving, either themselves or as a passenger of someone who is over the limit. An informal survey of attendees prior to the event to determine who might need a little help to stay safe would be one way of tackling this matter.

rradar is a specialist litigation and commercial law firm that uses legal expertise and digital tools to proactively manage, advise and deliver business solutions to reduce legal risk.