With the UK trapped in varying degrees of lockdown (via the tier system) for much of December, one might be forgiven for thinking that HR professionals up and down the land will be breathing a sigh of relief that they will not have to contend with the usual Christmas party related conduct issues. However, as many employers are turning to online festive celebrations to replace the traditional office Christmas party, employers should be aware that virtual celebrations pose just as many risks as the real life alternative, whether it be from online bullying, harassment or privacy issues.
With so many people working remotely during the pandemic, the boundaries between work and private life have become blurred, and with this comes the risk that the usual office etiquette is abandoned. Home working, and virtual parties, may increase the potential for bullying and harassment as people may let their guard down in more casual environments; there are no restrictions on how much alcohol employees may consume during, or even before, a virtual gathering; and in addition, perpetrators might feel more confident hiding behind their computer because virtual communications provide a degree of anonymity that can lead people to act in ways that they would not in person.
Indeed, it has been widely reported that during the pandemic there has been a significant increase in online harassment, including by work colleagues. Unfortunately, black women and non-binary people have been targeted in particular, with these groups experiencing the highest levels of victimisation.
Most (but, alas, not all) employees these days have a sense that discrimination in the office is unlawful. What is less appreciated is that the Equality Act 2010, which outlaws discrimination and harassment in England and Wales, also applies where individuals are acting in the course of their employment outside their workplace.
The trouble is that the Equality Act does not distinguish between acts done in the office at 9am on a Monday morning and events that take place out of hours at a Christmas party, whether that is in a pub or online. More onerous still is that an act of harassment does not have to be intended to fall foul of the Act if it relates to sex, race, disability, age, sexual orientation, religious belief, gender reassignment, pregnancy, marriage or civil partnership. The classic example is one person makes a joke – which they intend to be humorous rather than offensive – 3 people laugh, but a fourth is humiliated on the grounds of, say, national origin. That will constitute a breach of the Act. Clearly this can happen just as easily virtually as it can in person.
Inappropriate behaviour at an office party could lead to an individual being on the receiving end of a formal grievance and being dismissed for gross misconduct. They could also, along with their employer, potentially be a defendant in a tribunal claim and ordered to pay compensation.
Under the Equality Act employers will have a defence if they can show that they took all reasonable steps to prevent employees from committing discriminatory acts. Therefore, whilst trying not to dampen the festive spirit too much (particularly after the year that everyone has had), employers should therefore consider taking the following steps before they hold a virtual Christmas party:
- warn against inappropriate behaviour, including sporting offensive or risqué fancy dress costumes, and remind employees about the alcohol and drugs policy
- remind staff about the social media policy, and the consequences of posting pictures, or other inappropriate material, online that could infringe an individual’s privacy rights and bring the business into disrepute
- circulate clear written guidelines on equal opportunities and online harassment, and the disciplinary sanctions that could result from breaches of the rules
- ensure any complaints about the party are dealt with seriously and consistently, and in accordance with company procedures.
Employers must also ensure that their online party is secure, so that it is not susceptible to uninvited guests sharing offensive material.
Our anti-discrimination laws were not introduced to stop people having a good time, but to allow everyone to feel at ease at work and when socialising with colleagues, whether that is in person or online. Especially after such a difficult year, this festive season should be a time of goodwill for everyone.
If you have any questions or would like advice on any of the issues raised here, please get in touch with your usual Clyde & Co contact. Clyde & Co attorneys are available to assist you with these and other workplace issues. For more information, visit www.clydeco.com.
For more information please contact Joseph Granato, Communications Manager at L&E Global at firstname.lastname@example.org.