The employment lawyers are being the fun police again. The perennial issue of inappropriate behaviour at workplace parties over the festive season is even more relevant this year, as the new duty on employers to prevent sexual harassment is now in place. How has this changed things – and how do you even risk assess a party anyway?

A reminder of the issues

The end-of-year party is a celebration of business achievements, a recognition of hard work and an opportunity to thank staff with a free drink or even a free bar. For many, it is a rite of passage, a perk that is expected. But anyone who has worked in HR will talk of the dread the morning after, waiting for the flurry of complaints about inappropriate behaviour, largely brought on by alcohol. The ensuing investigation will often uncover behaviours of an individual that are completely out of character from the person who turns up to work each day and does their job.

It is not difficult to see how these problems arise - the party environment makes people relax and let off steam, and it is all to easy to forget you are still in a professional setting with colleagues rather than at a fun night out with friends. Behaviours that are dismissed as “banter”, or a bit of fun flirting, can often feel like harassment for the recipient or bystanders - not just of a sexual nature, but in the broader sense, such as related to someone’s race, sexual orientation or disability.

For employers, it is a fine line to tread. You want to ensure that colleagues feel valued and celebrated but keep the boundaries clear, being mindful that employers will be liable for any acts of discrimination that occur during these work-related events. Of course, it doesn’t start and finish with the party itself – it’s the after-party or the shared taxi home that so often creates the complication, and the lack of clarity on whether something is still connected to work. An employer’s liability becomes a little greyer the more distant the workplace itself is from the event, but this tends to be interpreted broadly. If senior individuals are present at the after-party and, in particular, continue to fund the alcohol, there is little doubt that the employer can remain liable for what happens next.

Sexual harassment allegations are most common at the end of the year, but of course the problems are not just reserved for festive parties. Consider too, the impromptu evening drinks after work or client entertaining events, which also raise the question of an employer’s responsibility for the behaviour of third parties. All of this is now in sharper focus with the introduction of the new duty on employers to prevent sexual harassment of staff, whether that comes from other colleagues or third parties who are interacting with your people.

Sexual harassment risk assessments

So, your eagerly awaited festive party brings an enhanced risk of inappropriate behaviour. What are you expected to do about this? 

New guidance from the EHRC looks at this issue in some detail in the context of sexual harassment. This was prompted by the new duty to prevent sexual harassment, which has applied since 26 October this year. A failure to comply with this duty can lead to an increase in any compensation awarded for harassment by an employment tribunal, and enforcement action by the EHRC.

The guidance sets out a number of key points, as explored in more detail in our article. A cornerstone is the need to carry out a sexual harassment risk assessment. The EHRC goes so far as to say that an employer is unlikely to be able to comply with the preventative duty unless they carry out a risk assessment. This applies to all kinds of harassment risks in the workplace - including at a party. The guidance lists “work related social events” and “socialising outside work” as examples of harassment risk factors, and also gives a specific example of harassment that happens at the pub during a leaving party. There can be no doubt that the EHRC views risk assessments of work-related social events as a reasonable step to prevent sexual harassment. 

How do you risk assess a party?

This is a question we are often asked by our clients! It can seem a strange idea to risk assess an event when the purpose is to enable employees to have fun. But there are quite a few things you can consider, in a similar way to other types of health and safety risk assessment.

You can follow the same approach to assessing festive party risks as you do with assessing other risks of sexual harassment in the workplace. We recommend that you assess and evaluate risks by considering both the likelihood of the risk materialising and the severity of the impact if it does materialise, and by looking specifically at your own workplace practices.

Some key things to think about with a festive party are:

• Pressure or expectation to attend, meaning staff may attend while feeling uncomfortable.
• Alcohol, which lowers inhibitions and can contribute to inappropriate behaviour.
• A free bar, which means there are no limits on excessive drinking.
• More mixing of junior and senior employees resulting in an imbalance of power.
• An off-site location, where people may feel less inhibited or professional.
• Attire which could be more revealing than usual business clothing.
• Overnight stays.
• Travel arrangements afterwards, such as taxi sharing.
• Attendance of third parties such as clients or exposure to other third parties present at the same party venue.
• Continuation of the celebrations at after-parties, whether with or without management being present.

This party is risky…what should you do?

It may be tempting to think you can’t control the harassment risks of festive socialising, so you might consider leaving them out of your sexual harassment risk assessment. While it is completely understandable to worry about drawing attention to these risks, we think it’s best to include them and be clear on what you can do. Your duty is to take reasonable steps to prevent sexual harassment – so you may find there are steps you can take to mitigate risks, even if you cannot eliminate them altogether.

So does that mean you should now adopt the grinch approach and cancel the party? We think not. But there are some practical steps you can take to mitigate some of the risks you identify:

• Set clear expectations in advance with staff communications – messaging that you can have fun but still respect each other, with a reminder of your policies.
• Be clear that there is no expectation on staff to attend if they don’t want to.
• No free bar or limit the amount of alcohol available! And ideally a reminder to everyone to drink sensibly.
• Provide alternatives to alcohol – not everyone can drink or wants to drink, and it is far more inclusive to provide decent non-alcoholic options.
• Ensure there is food available so that those who are drinking alcohol are not doing so on an empty stomach.
• Ensure managers are clear about their responsibility to watch out for inappropriate behaviour.
• Make it very clear when the party is over.
• Oversee arrangements for staff to get home safely, with options other than taxi sharing.
• Ensure staff know who to go to during or after the event if they have any concerns, whether about themselves or someone else.
• Ensure any external venue has their own anti-harassment policies and has undertaken a risk assessment.

When considering your other events, particularly those with clients and other third parties, make sure staff know that they can expect to be treated respectfully. If problems arise, it needs to be clear that you will step in to support them. Creating an environment where people feel able and supported to raise complaints or call out bad behaviours will help to draw out problematic issues early on, and often stop them from escalating into more something more serious. 

What next?

As we have explained in our recent article, the new government has further plans in the Employment Rights Bill. The intention is to raise the bar to “all” reasonable steps to prevent sexual harassment, and to re-introduce direct liability for harassment by third parties (which is currently covered by the preventative duty but generally it is not possible to make a tribunal claim). This will only make risk assessments more important. 

Sexual harassment is a serious issue. The new duty provides an opportunity to ensure that this and other forms of harassment are identified early and steps are taken to prevent it happening again. It is also crucial to communicate your expectations clearly. Very often, harassment occurs not from any ill intent, but from misguided humour or from crossing a line without meaning to cause harm. Things happen and people make mistakes. The important thing is to help create an environment where someone can say, “that’s not okay”, and the incident can then be dealt with in the appropriate way.

Festive parties can cause a headache for many reasons (even if there isn’t a free bar!), but it doesn’t have to take away from what you are trying to achieve. Getting colleagues together is a positive way of connecting people, particularly in a hybrid working environment. Celebrating together is hugely impactful on employee wellbeing. With careful planning, clear communication around expectations and a more inclusively arranged event, you can make sure it is a joyful (and peaceful) event for everyone.

We can provide you with guidance and support to help you meet the new duty to prevent sexual harassment. If you would like a template risk assessment please contact Lisa Farthing or your usual Lewis Silkin contact, and you can find more details of how we can help here.