Frolicking with the law can be a dangerous party trick
Festive days again… and with it, the usual round of drink-laden lunches stretching just another half hour into the afternoon, not to mention the dreaded office party. Surely, normal rules don’t apply at this time of year - only Scrooge would mind if you were slumped at your desk clutching the alka seltzer the morning after? Generally, what you do out of work is not your boss’s business, but where office parties (let alone long lunches) are concerned, you do need to be just a bit careful.
The legal line is that off-duty ‘misconduct’ can be your employer’s business if a clear link is drawn between the business interests of the company, and the misconduct in question. It’s unlikely to be much of an issue if you’re out with your friends on a Saturday night – but at an office party, a tribunal may well take a different view of things like drunkenness, harassment or fighting. It doesn’t matter whether the offending behaviour takes place on company premises or not – as long as it’s a function for which the employer is responsible. So, to save embarrassment (and worse) here is some essential info:
Keep it clean
Run for your life
We’ve all suffered at the hands of the office lech who thinks he’s got carte blanche to do whatever he wants under the mistletoe. Most of the time we put up with it. But we don’t have to. Remember, if a colleague harassed you, your employer could be liable.
There’s no strict legal definition of harassment – it’s basically defined as ‘unwanted conduct of a sexual kind’. Bear in mind that it’s how you respond to the conduct that matters. Never mind if the person in question told you hundreds of other women wouldn’t bat an eyelid at what he’s saying or doing. If this type of conduct takes place in the office, then there are clear implications for the employer.
On the other hand, it’s more of a grey area if it takes place in a purely ‘social’ setting, say if you meet up with a colleague over the weekend or at a private party. In some of these cases, employers can avoid liability on the basis that situations of this kind are totally beyond their control. But that’s less likely to be the case at an office function.
Traditionally, there have been question marks over this, because tribunals have held that for an employer to be liable, the harasser has to be acting ‘in the course of his employment’, and it’s sometimes difficult to see how this can be the case at a social function. In more recent cases, however, employers have been shown to be liable for harassment which occurs in circumstances over which they have control unless they can show they took all reasonable steps to prevent the harassment from taking place.
Airing your grievances
Your employer should really have a policy on sexual harassment in place – but even if it doesn’t, there are things you can do. Try to have a word with someone more senior and tell them you’re not happy. This may sound like a feeble thing to do, but it’s definitely sensible and it makes your employer aware that there may be a problem. If they fail to act, then there’s an increased risk that they’ll be liable, and as a worst-case scenario, you have the option of raising a discrimination claim.
If you don’t feel comfortable taking things that far, you could chat to your manager later and just say how unhappy your colleague’s behaviour made you feel, telling them you think it’s something you feel should be monitored. You may be asked whether or not you want to make a formal grievance, which is certainly something you could consider. It may not seem necessary to put your head above the parapet like this – but at the end of the day, it’s not behaviour that should be condoned and, even if you think you can handle it, next year someone else may react differently.
Bunking off
And finally... just be careful with those extended lunch breaks. It’s pretty unlikely your boss will do much more than raise an eyebrow if you adopt an ‘end-of-term’ approach to lunch in the run-up to the New Year. But bear in mind that your employer could take disciplinary action if you’re not working your proper hours, especially if there’s an urgent job on.
Tribunal cases in this area tend to focus on workplaces where there are safety concerns, or where patients are being cared for – but employers are, at the end of the day, entitled to take a strict view of anything which threatens their relationship with customers or clients. That said, if you can show you’ve been treated differently from other staff who’ve been allowed to get away with a whole sea of liquid lunches, then you may be able to argue that any action taken against you is unfair.
And on that killjoy note, I’m off to the pub!