It’s Beginning to Look a Lot Like Christmas…

December just wouldn’t be the same without Kingfisher Professional Services very own 12 Days of Christmas Countdown! Our Christmas themed updates contain a flurry of fast facts, Christmas cheer and helpful hints from our employment law and health and safety teams to help you have a ‘Wonderful Christmastime’.

(Not) Rocking around the Christmas Tree

No ‘physical’ workplace Christmas party this year? Feel like you’re missing out? Here’s our round-up of some workplace Christmas party shenanigans to keep you entertained. Can you guess what the employment tribunal decided in these cases? No peeking at the answers that can be found at the end!

  • (a) Pass the punch…

An employee walking home with colleagues after their work Christmas party had a disagreement with one colleague and ended up punching another in the face when he tried to intervene, causing him serious injury. After an investigation and disciplinary process, the employer dismissed the employee for his actions. The employee claimed his dismissal was unfair as the conduct happened outside the course of his employment and he was the only one who was dismissed.

Was the employer right to put the employee on the naughty list?

  • (b) Right or wrong(ful)?

Two colleagues attended a work Christmas party which was held at a casino. They had separate rooms in a hotel. During the party the female employee became unwell and was escorted back to her hotel room by a senior male colleague as they were good friends. The female employee later complained that her male colleague had attempted to drug her during the party by putting codeine in her drink and that whilst he was in her room after the party he kissed her on the cheek whilst she was feeling unwell and lying on the bed.

The employer investigated and the employee denied wrongdoing. He said he saw his colleague coughing during the party and offered her a lozenge. As the evening went on, her coughing became worse and he escorted her back to the hotel, wrapped her in her duvet and rubbed her back to help her breathing. He admitted to trying to give her a goodnight kiss, but that it was nothing more. The employee was dismissed for his actions following a full disciplinary process. The employee successfully appealed against the ‘drugging allegation’ as there was no evidence to support this, however the dismissal was upheld in relation to his other conduct. He complained that the dismissal was unfair and wrongful (that he should not have been dismissed without notice pay).

What did the employment judge decide?

  • (c) Guess who?

At a Christmas party an employee was seen kissing another employee and then going to a hotel room with him. Some weeks later, the employee discovered she was pregnant and told the managing partner of her pregnancy. Within an hour, the HR manager knew of the pregnancy and began speculating with other employees about who the child’s father might be. The employee raised a formal grievance about this, and asked to temporarily work at a different office to the HR manager. Her request was refused, her grievance was not dealt with and the firm refused to pay her for any time she remained away from work as a result of these issues. The employee complained to an employment tribunal that she had been constructively dismissed and had been subject to sex discrimination, pregnancy-related discrimination and harassment.

What do you think the outcome was?

Answers

  • (a) In Grimson v Display by Design Ltd the tribunal found the dismissal was fair. The employer had carried out a reasonable investigation into the incident and genuinely believed the employee had hit his colleague. Dismissal was reasonable in the circumstances. The events were sufficiently closely connected to work to have had an impact on the working situation and there was no inconsistent treatment. The assault had been unprovoked and the other employees involved were not to blame and therefore received less serious disciplinary treatment.
  • (b) In Kerins v Barclays the employment tribunal took the unusual decision of holding that the dismissal was fair – that it was within the band of reasonable responses in the circumstances, but that it was wrongful. This is possible due to the different ways tribunals approach unfair and wrongful dismissal claims. When it came to the wrongful dismissal, the judge found that the employee’s behaviour was not such that the employer was entitled to dismiss without notice, the employer was ordered to pay the employee £12,282 in damages.
  • (c) In Nixon v Ross Coates Solicitors, the Employment Appeal Tribunal held that the employee had been constructively dismissed because of how she had been treated and that she had been discriminated against and harassed. The gossip which she found distressing stemmed from the night of the Christmas party and related to the paternity of her child-it was connected with pregnancy. It was also unwanted conduct and met the definition of sexual harassment.

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