’Tis the season to be merry... BUT, remember - whether the event is held during normal working hours or outside of working hours; whether it’s held at the office or at a venue away from the office premises, the work party is considered to be an extension of the workplace and as such both employers and employees are accountable for their conduct in the usual way.
All the usual rules regarding fighting, insubordination, ordinary harassment, sexual harassment, discrimination, bullying etc continue to apply. Employees should be reminded of this.
One of the biggest potential causes of post-party ‘legal hangovers’ is the consumption of alcohol which loosens inhibitions, and impairs good judgement which can result in sexual harassment, inappropriate comments, or fighting, and of course, it can also result in driving under the influence of alcohol when the employees leave the party. Personal reputations, as well as those of the company can also be compromised – especially in this era of social media and ‘tagging.’
In a decided case – though not a South African one - an employee claimed constructive dismissal, sex and pregnancy discrimination and harassment after gossip following events at the office Christmas party. The employee was seen kissing a fellow employee and going to a hotel room with him. The HR manager knew that the employee was pregnant and began speculating about who the father of the child could be and spreading other unsavoury gossip. The employee found the situation intolerable – and resigned. Even though the employee had chosen to put her social life in the spotlight by kissing her colleague at the party – she nevertheless still won her case against the employer.
In another case, the manager promised a fixed term contract employee that he need not worry about his future, and that his position at the company was assured because he was such a good worker. A month later, the fixed term contract came to an end. The employee claimed he had been given a reasonable expectation of permanent employment by the promises made by the manager at the Christmas party. As it turned out, the employee lost the case, because the manager was drunk at the time and the arbitrator found that it was not reasonable to take his promises seriously. This was a case that could easily have gone the other way for the employer.
A similar case involved a manager making promises to raise the employees’ salary. When the raise failed to materialise, the company was sued for breach of a contractual obligation to give the increase. This case was lost because the promises, on the facts of the case, were held to have been obviously reckless and not made with the intention of forming any binding contractual obligation.
Nevertheless, employers should advise managers not to discuss career potential or remuneration with employees at the end of year party, as words of encouragement, even made with good intentions, can end up being misinterpreted.
Sexual harassment is a very real concern at functions where alcohol is being consumed. In a Canadian case, an employees had one (or perhaps a few!) drinks too many and told a female co-worker that she was pretty and sexy. She indicated her discomfort. He then told her that men his age were much better in bed than younger men because of their experience – and tried to lift her skirt. This was sexual harassment, because it was unwelcome conduct of a sexual nature which offended the complainant’s dignity. Sexual harassment can be a one-off event and the complainant does not need to expressly indicate that it is unwelcome. Merely walking away, or failing to respond is enough to show that the conduct is unwelcome. However, invited or reciprocated sexual interaction between colleagues is not automatically sexual harassment.
Some examples of sexual harassment include:
- unwelcome touching, hugging or kissing;
- staring or leering;
- suggestive comments or jokes;
- unwanted invitations to go out on dates or requests for sex;
- intrusive questions about an employee’s private life or body;
- unnecessary familiarity, such as deliberately brushing up against someone;
- insults or taunts of a sexual nature; and
- sexually explicit emails or SMS messages.
Drunken fighting can also be a real problem at functions where alcohol is consumed. In a decided case, an employee and his wife were leaving the party, when the latter made disparaging remarks about how the party had been organised. A member of the organising committee, a managerial level employee, then shoved her. The husband intervened and grabbed the fellow by the collar and threw him onto the pool table. Then a foreman tried to intervene by throwing a beeper at the husband. The fracas continued. Needless to say – all parties involved in the fighting were disciplined for misconduct and bringing the reputation of the company into disrepute.
In light of these sorts of problems employers are well-advised to:
- Monitor the amount of alcohol consumed by their employees at work related events
- Ensure that employees are aware that all the usual workplace rules and policies continue to apply at work related social events, and
- Take positive steps to prevent employees from driving home after drinking.
Nicci Whitear-Nel (BA LLB)
Senior Lecturer – School of Law, University of KwaZulu-Natal