It is the festive season so time to beware that potential minefield, the office party.
ACAS report that 30% of UK employees admit to flirting with work colleagues at the office do, while one in five expect they will do or say something embarrassing this year.
Not surprising then that 15% of those questioned said they are going to change their Facebook settings so that they have to approve a ‘tag’ in a status or a picture. A good idea if you work in the property sector where one in five also revealed they have had an argument with their other half because of a picture from the Christmas office party appearing on social media.
But making a fool of yourself aside, real problems can arise when work colleagues and high alcohol consumption are mixed together as two cases this year have highlighted.
The recent 2015 London Zoo Christmas affair ended in acrimony when the meerkat handler got into a fight with a colleague who worked with the monkeys over the affections of a llama keeper. There was conflicting evidence as to how the fight started, but the Zoo decided that one should be dismissed with the other given a final written warning and a ban from future work events.
The employment tribunal however held that the dismissed employee had been unfairly dismissed (although her damages were reduced by 100% because of her contributory fault) because no reasonable employer would have placed the blame primarily on her taking into account the lack of clear evidence as who threw the first punch. The employer could have legitimately dismissed both employees, or given them both final written warnings but the discrepancy in the employer’s actions made the decision to dismiss unreasonable.
A decision which clearly contrasts with the earlier EAT decision in MBNA v Jones.
This claim followed an evening at Chester racecourse held by MBNA bank where two colleagues, Mr Jones and Mr Battersby, became embroiled in a fracas that reportedly other work colleagues regarded as “fun” and “banter” but turned nastier when Mr Jones punched Mr Battersby in the face.
The night continued and whilst Mr Jones and other colleagues went to a nightclub Mr Battersby was left outside sending Mr Jones texts to the effect that he would follow him home and “rip his ***** head off”. Fortunately, Mr Battersby did no such thing but instead finally left the scene and Mr Jones did not receive these texts until the following day.
The result of all of which was that MBNA, considering their behaviour completely unacceptable with the potential of damaging the bank’s reputation, dismissed Mr Jones for gross misconduct and gave Mr Battersby a final written warning.
Mr Jones brought a claim which succeeded at first instance because, like the meerkat keeper, there had been inconsistent treatment of the two protagonists. However the EAT disagreed.
The key question, they said, was “was it reasonable, in all the circumstances, for the employer to treat the reason it relied upon as sufficient for dismissal”.
This needs to be considered for each employee separately and if it is reasonable, then ”the mere fact that the employer was unduly lenient to another employee is neither here nor there”.
It is difficult to see how strictly applying the EATs binding judgment in MBNA v Jones the tribunal who heard the claim brought by the meerkat handler did conclude that treating the two employees separately resulted in the dismissal being unfair. The tribunal stated that London Zoo could have legitimately dismissed both employees, so they clearly concluded the decision to dismiss, based on its merits, was reasonable. The fact that the employer treated the two involved in different ways should, as the EAT stated, have been “neither here nor there”.
In practice, however, it may be that throwing the first punch could be the deciding factor.
Conclusions? Well, all things considered, we should of course continue to enjoy the Christmas season and office party, but maybe best to save the real merriment for when you are with friends and family, or at least the people you can stop yourself from hitting.
Merry Christmas one and all.