Jingle bells and legal spells: Navigating Christmas laws

With the increased usage of social media, people's behaviour at any work-related party can be posted to a global audience in seconds. An organisations reputation could be tarnished, and an individual's career could be substantially affected by recording and posting of office parties online.

Whether the party is in or out of the office it should be treated as an extension of the workplace with both employers and employees conducting themselves appropriately. Although, as we know this is not always the case and an employer or employee can find themselves the subject of a variety of claims, including sexual harassment.

Grace Hughes from DAS Law takes a look at the new duty on employers on the prevention of sexual harassment in the workplace.

The 26th of October 2024 saw the introduction of a new legal duty on employers imposing the requirement to be proactive in preventing sexual harassment in the workplace through the Worker Protection Act 2023. This is something for employers to be mindful of, especially as we approach the Christmas party season.

It is important to be aware of what constitutes sexual harassment by looking at the definition under the Equality Act 2010: "Unwanted conduct of a sexual nature which has the purpose or effect of violating the person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the person." It is important to note that this regulation extends to sexual harassment experienced by employees by third parties such as customers and suppliers, as well as sexual harassment committed by employees of the company.

Employers should conduct a risk assessment around sexual harassment occurring in the workplace and identifying and implementing reasonable steps to prevent this conduct.
Failure for an employer to act on the legislation may mean that whilst an employee cannot bring a stand-alone claim for failure to adhere to the duty, for an employee that is successful with a sexual harassment claim, the tribunal has scope to uplift the compensatory award by up to 25%.

The Equality and Human Rights Commission (EHRC) can also step in. If the EHRC believe there to be a breach of the preventative duty they can investigate the employer, this could result in the employer being issued with an unlawful action notice. They may also seek to enter into a legally binding agreement with a view of preventing any future breaches.

Do the normal rules of gross misconduct apply at an office Christmas Party?

Yes, they do. A work Christmas party should be an extension of the workplace, so the same rules will apply. An act of gross misconduct is potentially serious enough to fundamentally breach the contract between employer and employee and justify summary dismissal.
It should further be noted that with an event that the employer hosts, they can potentially be held vicariously liable for the actions of their employees if those actions are deemed to have been committed in the course of employment. It may therefore be advisable for all employees to be reminded of their responsibilities and consequences of their actions in advance.

Common examples of Christmas party gross misconduct are serious insubordination, harassment, and damage to company property. This list is not exhaustive and if there is an incident which is sufficiently closely connected to work, and will likely impact on the working situation, then it is likely that the employer will be able to start a disciplinary investigation regarding the matter.

If any photos or videos are taken during the party, who owns the copyright?

The Copyright, Designs and Patents Act 1988 provides that the author of a photograph is the person who creates it. The person who takes the photograph/video will own the copyright unless the photo/video was created by a person in the course of their employment. In this case the copyright will be owned by the employer. See below also on permission to use.

Can I have any photos/videos removed from social media or stop them being shared?

In UK law there is generally no right to privacy where an image/video is taken in a public place. In a case involving the model Naomi Campbell, the court determined that the publication of photographs taken in public would only be prevented if they were obviously private or were offensive in some other way. This would include a person being caused humiliation or severe embarrassment.

Most social media companies have policies in place that although the creator of the photo/video is the owner, once they are uploaded you are granting a licence to that social media company to use or allow others to use that photo/video.

Due to the lack of privacy laws, the courts are generally relying upon decisions in previous cases for their findings. Publication of photographs can be prevented if they were commissioned to be taken but were then used for an unauthorised purpose.

The author of the photo/video would need to delete the photo/video from their social media account for it to be removed. However, if the photo/video has been shared by another user it is unlikely that it can be removed.

Can I insist they are permanently deleted and how do I go about this?

If the photos/video belongs to an individual then being able to get photos/videos removed from social media is highly unlikely, especially if the photo/video has already been viewed/shared.

The legal recourses available to prevent or remove photos/videos are a court injunction, a court order for return or destruction, or damages by way of financial compensation.

However, if the photos/videos belong to an employer, then with the introduction of the General Data Protection Regulation in 2018, it is important to remember that an individual has the" right to be forgotten" and can request that any photos/videos in the employer's possession are permanently deleted or removed.

Christmas Party - DOs and DON'Ts

Generally, Christmas parties can be an opportunity for employees to let their hair down and relax. However, it should not be forgotten that what happens at a Christmas party does not always stay at the party.

DOs for Employers

• Invite all employees to the party even if absent through sickness, do not celebrate Christmas, maternity or paternity leave.

• Remind employees of the company's expectations and be clear on what will be considered inappropriate behaviour.

• Try to control the amount of free alcohol and make sure food and non-alcoholic drinks are provided as well as catering for all dietary needs.

• Be prepared to deal with any inappropriate behaviour in line with company policy and be consistent in how you apply the policy.

• Avoid discussions about career prospects or remuneration with employees.

• Consider nominating a member of management to refrain from alcohol at the event to deal with any emergencies or incidents that arise and to monitor underage employees.

• Ensuring that the venue chosen is accessible for all - for example disabled employees.

• Remind employees it is still a work-related event, and a certain level of professionalism is still expected.

• A consistent approach to disciplinary action for unacceptable absenteeism should be taken (post party), but it is also worth remembering that people do genuinely get ill at this time of year.

• Consider if there are policies in place regarding the use of social media in the workplace and work situation and ensuring all employees are aware of these policies.

• Consider if they have a legitimate reason to carry out any such monitoring.

DON'Ts for Employees

• Forget you are effectively still 'at work', so conduct yourself accordingly.

• Drink too much so that you do not know what you are doing.

• Get involved in office gossip or office 'banter' which could be considered offensive.

• Try to discuss why you should have a pay rise with your manager.

• Make any unwelcome advances or gestures - sexual or otherwise.

• Become violent or aggressive.

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