Conflict at the Christmas party – disciplinary sanctions when staff ‘come to blows’
As the festive holiday period approaches, workers are heading out in droves for their annual Christmas parties – where inhibitions are left behind in…
As the festive holiday period approaches, workers are heading out in droves for their annual Christmas parties – where inhibitions are left behind in the office and alcohol will often be rife. In the vast majority of cases the Christmas party will be an enjoyable and fun-filled event. However it is inevitable that some employers will be faced with employees committing acts of misconduct and, in some cases, the conduct may be serious enough to warrant dismissal. As such it pays to take a proactive approach to minimising the risk of such misconduct and to take steps to remind employees of their responsibilities to behave in an appropriate manner.
Whether a dismissal is fair will depend firstly on whether the reason relied upon is one of the reasons permitted under the Employment Rights Act 1996, which include conduct.
Secondly, an employment tribunal will have regard to whether in the circumstances (including the employer's size and administrative resources) the employer acted reasonably in relying on that reason as sufficient to dismiss the employee, and the equity and the substantial merits of the case.
When determining whether a dismissal is fair, the employment tribunal will consider whether the decision to dismiss an employee for conduct was within the range of decisions which a reasonable employer, acting reasonably, could reach.
When disciplining employees, you should act consistently when imposing sanctions and it will not usually be reasonable to impose different sanctions in two similar cases. However, it is sometimes possible to make distinctions even between cases which are related or are very much alike (for example, where there are aggravating factors or mitigating circumstances). If it is alleged that a difference in treatment has rendered a dismissal or other disciplinary sanction unfair, the Tribunal will consider whether the employer’s differential treatment was such that no reasonable employer could have made the same decision.
You should always consider the circumstances of the incident carefully and decide if the dismissal in the particular case falls within the range of reasonable responses. If different sanctions are imposed, they should be carefully considered and explained. You should also consider charging both employees with separate and different acts of misconduct if the severity of their behaviour differs.
In cases where it cannot be determined who has ‘started’ a fight, it would be wise to consider imposing the same sanction on both employees. If you chose to believe one employee’s version of events over the other and believe that this warrants the dismissal of one employee, it is important to be clear as to the reasons why this is the case and carefully weigh up any evidence.
Some thought also needs to be given to whether the misconduct is work-related. Employers may not always have the right to commence disciplinary action against employees following any incidents of misconduct at Christmas social events. Whilst conduct at a work-related social event is arguably inextricably linked to an individual’s employment, employees may have an expectation that what they do outside of working hours is not subject to the usual company standards on behaviour. It will usually be safe to assume that behaviour at a social event arranged and subsidised by your business will be considered work-related, but take advice if you are unsure. Areas of uncertainty may open up where employees arrange their own celebrations or ‘move on’ from the ‘official’ Christmas party to another venue.
Take pre-emptive action to avoid trouble before any work event and take particular care when providing alcohol at events, as this could be interpreted as condoning misconduct. It may be unfair to dismiss for drunken behaviour, when a manager has bought drinks and arguably encouraged, or at least enabled, over-consumption.
Employees should be reminded in advance that they are expected to comply with established standards of conduct. That way, the fall-out from festivities is less likely to spoil the fun for all involved.
If you have any questions on this issue, or are dealing with a tricky disciplinary case, please do not hesitate to get in touch with Laura or speak to your usual Weightmans contact.