Employment Law at 11 - December 2022

Posted in : 'Any Questions' Webinar Recordings on 2 December 2022
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Christmas Party; Working from home; Monitoring

Christine Quinn from Legal Island and Seamus McGranaghan Director, O’Reilly Stewart, will discuss your questions on “Working or Shirking from Home?” and Christmas Party conundrums.

  1. Did you attend Seamus’ session on “Working or Shirking from Home?” at the Annual Review? If so, Christine will ask all your burning questions that he didn’t get to on the day. If not, now’s your chance to get involved, pose some questions, and catch up on what you missed!
  2. With the work Christmas Party making a welcome comeback this year, it’s back to the not-so-welcome post-party ‘clean up’ for HR Professionals. From drunken antics to inappropriate comments, some work events have it all! Seamus will take you through some helpful tips on how to lay the HR groundwork for a successful event, and what to do if things to do go a bit ‘Christmas Crackers'.

 

Recording

 

Transcript

Christine:  Good morning, everybody, and welcome to Employment Law at 11, sponsored by MCS Group. MCS help people find careers that match their skillsets perfectly, as well as supporting employers to build high-performing businesses by connecting them with the most talented candidates in the market. If you're interested in finding out if MCS can help you, head to www.mcsgroup.jobs.

My name is Christine Quinn. I'm part of the Knowledge Team here at Legal-Island. I'm joined as usual by Seamus McGranaghan, Director at O'Reilly Stewart Solicitors. Good morning, Seamus.

Seamus:  Morning, Christine. How are you?

Christine:  Very well, thanks. So this morning we are talking about working or shirking from home. We're dealing with some of the questions that came up on this topic at Seamus's session at the Annual Review of Employment Law a few weeks back. If you were there, we'll deal with all the questions that were left hanging. If you weren't there, don't worry. We'll get you up to speed very quickly on this topic.

And we're also dealing with Christmas party conundrums. They're back and they're as stressful as ever for HR. So, hopefully, we'll lead you through the minefield that can be Christmas parties.

So, first things first, we've got a few polls for you to have a look at. If we can get the first one up, that will be great. Just want to look a little bit into how you're dealing with people working from home, really.

So first question is, "How do you monitor employee productivity while working from home?" So, A, we don't, their output speaks for itself; B, we check Teams, or similar, and note when they are active; C, we've installed keystroke technology; or D, we've installed spyware on their webcams.

So let's see how technical you've gone for it with your productivity checking. There's one that's very much coming out on top, which may be a welcome one for us.

Seamus, let's have a wee look at those results.

Seamus:  Very good.

Christine:  So way out on top, 93%, we don't monitor employees, their output speaks for itself. So a very trusting bunch we've got in this morning, Seamus. Is that what you were expecting?

Seamus:  Not quite. I thought that there would've been higher numbers in relation to . . . I suppose as we moved down those poll questions, I expected that the numbers just sort of slightly increase.

I think that not checking and looking at output is no doubt the most significant way that employers check it. But I'm certainly aware of employers that will check Teams, and I know a lot of the public sector do use the keystroke technology as well in relation to employees that work from home. So surprised then that we had 0% in relation to that.

I suppose, Christine, a lot of this does come around sometimes whenever things go wrong, or whenever there has been a significant slump in productivity, or there are concerns raised about specific employees. That is the time when the employer will go to check their records and the data that they hold.

And a lot of employers will not be really aware either of how much data their existing technology retains in relation to their systems that they have, and the ability through the likes of even Microsoft to go through and check through emails and things like that as well, and what you're able to do from your server in relation to . . . if we want to say the word spying on employees. There's a lot there that's not intentional, but it is collating data in background.

And I suppose that's the interesting point, that when something does happen, employers then have the ability to go back to look at that. But whether or not that is fair from an employment stance is one question. And second of all, whether you're following within the legality of GDPR and the 2018 Act as well is another matter.

So I think probably we all will have more ability and technology than what we're using. But I do think that a lot of it is still there.

Christine:  Yeah. Brilliant. So we've got another follow-up question, but given that not a lot of people are monitoring, we might not get too big of a result here. So if we could put the second poll up, we just want to see for those that are monitoring at home . . . So if you monitor employee activities while working from home, are you, firstly, open and transparent about it, you've circulated info, you've consulted, you have a policy, all that good stuff, or secondly, we haven't told them?

And you can be honest with us. We are not monitoring you at all. So just let us know what you think. And again, we've got quite a high result in one sector. So we've got people that are open and transparent, and I think that's kind of what I was hoping for, Seamus. What about you?

Seamus:  I mean, from a legal perspective, absolutely, that is what you want to be seeing, is that there is an openness, and that employees are made aware of the data that the employer has or has the ability to get.

And I suppose a lot of this sort of stuff will come around maybe more so when you're coming to maybe doing your reviews or your appraisals with specific members of staff. You might be providing them with management reports and information at that stage, and you might surprise a few by giving them information that they weren't aware that you had the ability to pull a management report on.

But look, I think if you're office-based and you're using sort of a central case management system, most of your employees will know the abilities and the reach that the system might have. And they might not be aware of other things that you might be able to pull down.

Often, you have to pay the additional money to get the additional software for that documentation or for that data. So it'll depend from, I suppose, industry to industry, and from employer to employer. But I think that's encouraging, absolutely, to see that there is an open and transparent way that employers are dealing with it.

Christine:  And hopefully, this morning we can change that 11%'s mind and illustrate why they should be a wee bit more transparent.

So we've got one last poll question here, and this is something that Seamus has been seeing a lot in practice, so we just wanted to look behind it a bit and see if you guys out there are also having the same questions asked of you.

So, "Have any of your staff asked you to pay for heating or electricity while they work from home?"  We've got, yes, we've made the payment; yes, we're considering it; yes, but we've told them a flat no; or no, nobody has asked.

Now, I suppose we did talk about this in the cost of living webinar we did a while back. It does cost quite a lot to heat your house nowadays. So are employees working from home needing that extra help? Are they asking for it?

Again, I think we've got quite a definitive answer. Yeah, 70% have said no, nobody has asked. But we still do have kind of a quarter there saying yes, and they've been told no as well, that you're not able to assist.

So, Seamus, are you getting a lot of questions about that across your desk?

Seamus:  Yeah. I mean, earlier in the year, in and around coming at September time, there was a lot of talk about employers providing employees with a cost of living payment to assist. And we talked about it on the webinar, about that being a positive thing and employers taking steps in order to try to assist employees.

The worry then was always about we haven't come across the worst of this yet, and we may still not have come across the worst of it yet. And then it's the aspect of that payment being made and already been used up, and then a requirement for something additional or further in relation to it.

But it is something that I am getting a lot of inquiries from my clients about, and more so coming from the aspect where the employee is working from home and they've approached the employer saying, "Look, I'm working from home. I've the support of the office to do that, but it does mean that I'm using my electricity, my heat, and all of all of the utilities that I have to use at home, which is increasing the costs".

And yes, there's a benefit along the line from working from home, if you're saving on commuting costs and things like that as well. But I think maybe as time moves on, in relation to January and February, those sort of bleaker months, that this might be something that employers are asked for further by employees in order to get that support.

And I think it's a bit of a tricky one for employers because they're saying, "Well, look, you're already getting the ability of working from home". Some of the responses to that have been, "Well, you're saving in the office because . . . You're saving on heating and light because there's the reduced capacity there." And there's maybe been an ability for certain sections of the office, whether it's through floors in the office or whatever it is, to be reduced and savings being made for the employer there as well.

So it's just one of those issues that I suppose we need to keep our eye on going forward.

Christine:  Yeah, I'd say we'll certainly be revisiting it, won't we?

So working or shirking, Seamus. Basically, the world is divided into two different sectors. We've got kind of our Alan Sugars, our Elon Musks that think if you're not sitting in front of me at your desk, slaving away, then you're not really working.

There was a CEO who put a comment on LinkedIn that he thought his employees were sitting about in their onesies watching loose women and feeding the squirrels.

So I think there are a lot of people that do think that. The other side of the coin is employees are more engaged, they have more time with their families, they're not wasting time sitting in traffic or in trains and buses getting into work. They've got better work-life balance, so you're getting more out of them.

So that's really what we're going to be talking about today, and how you can be sure that they are working, and what you can do to be sure.

I suppose we do have some monitoring that goes on just naturally in the workplace. You need to look after employees' health and safety. So there's a certain amount of monitoring that needs to go on there. You need to check for burnout, and when people are working from home, that's all the more important because you can't see them.

But I think the data that's collected . . . You alluded to the fact that there's a lot of data that, really, employers have access to, and they collect it for a certain purpose. But then that leaks into, "Oh, well, I've seen Christine going off for a cup of tea one too many times in the CCTV camera. Will we do a performance management on that employee?"

So is it okay to use data that you're collecting for one purpose and use it for another purpose?

Seamus:  I mean, I think I did possibly put myself in a bad foot with some delegates because during my seminar at the Annual Review, I'd put up a picture and then I gave some of the quotes that the individual said. So I had Alan Sugar and Elon Musk, Liz Truss, saying that we all needed a bit more grit in our work, and the classic one of Jacob Rees-Mogg as well. So a bit of a terrifying picture for delegates at it.

But I think the simple truth is that if you are working off any kind of normal technology in your place of work, there is monitoring that is going on. Whether or not you're accessing the monitoring or not and the data that's produced out of that is a different matter, but there is monitoring going on.

And even if you think of all of the different systems that sit behind our tech in our computers that are looking for viruses, that are scanning our emails, and pulling back emails that we don't see because they are risk, all of that is already going on in the background.

And I suppose that, ultimately, there isn't any legal difficulty in relation to those normal processes that are on-going. The greater risk, of course, is where there is monitoring that is on-going and that there hasn't been notice given to employees about, and then all of a sudden, they are provided with information where they're shocked. A lot of the times, it can really damage the employee-employer relationship as well.

And then we've had the progression of all of that where the sort of worst-case scenarios seem to be where employers are requiring their employees to have their monitors on all day long so that they can be monitored to check from time to time if they're doing their work. There was an interesting case, a Dutch case, that I can touch on in a bit.

But the basic position is . . . And very helpfully, just at the outset of all of this, this is the guidance that has very recently been issued by the Information Commissioner's Office. It was issued on 12 October 2022. It's entitled "Employment Practices: Monitoring at Work," and it's draft guidance from ICO.

It has probably taken the ICO some time with the shock of the pandemic and the such huge increase in relation to working from home, but they have put this together. It's really informative. It's really helpful.

The gist of it is that there certainly isn't a position where you can say, "No, you cannot monitor what your employees are doing when they're working from home". That is not the position at all.

The clear position that we have, and certainly from the ICO guidance, is that the employer must strike a level of balance in relation to what would be intrusive, and then balancing it off of the needs of the business. And you have to balance off all of those matters when you come to giving consideration to how you would monitor employees.

But it certainly isn't a position where there's a simple, "No, you can't do it". Really, what you're looking at is the justification aspect. Is it necessary? Is it required? And if it is, then you're at the point where we're at with the poll question of, "Have you consulted with your employees about it? Have you notified them of it? Do you need to get consent in relation to the employees for certain aspects of monitoring? And what is the fallout if something happens in relation to it?"

So I think probably the two aspects that I would see . . . And a really interesting one as well is that the ICO guidance simply says that if you do this right, if you're an employer and if you monitor correctly, what you can do is build a really strong relationship with your employees.

You can be known as an employer and earn a reputation as an employer that respects privacy and respects the personal lives of their employees as well. I mean, that's the opening and starting point of the guidance that you get.

Really, two aspects that I always think about when it comes to this is there's the data considerations that you have, and then there's the employee aspects of it as well.

And the data considerations, we know the legislation is GDPR and the 2018 Data Protection Act. I think we've all got to a place where we're much more comfortable with GDPR and what the requirements are for employers. But I think it's that aspect of saying that the standard monitoring that goes on is not going to be viewed as intrusive. There will be a level of understanding from your employees that that is necessary and required and, in a lot of cases, expected.

It's the more intrusive side of the monitoring. It's the covert monitoring that happens. It's the behind-the-scenes information that the employer is gathering. And there's no doubt that it is happening. We can read "Personnel Today", any of the HR guidance or media sources that you go to. I mean, this information around monitoring is coming from somewhere, and it's because the employers have it. But they're maybe just not so clear with their employees that they're doing it.

So you do need to have a reason. The underlying point is that you do need to have a specific reason in relation to why you're processing the data.

That's the fundamental point behind GDPR. You can't just do it willy-nilly. You can't just decide that you think that would be interesting information to have. There has to be a justifiable reason for that. And then it's about explaining that reason and giving an understanding to your employees as to why you're doing it.

And ultimately, as you said in the poll, best-case scenario is that you have a written policy and a procedure in place in relation to how data is monitored, captured, how it's used, how it's retained, when it will be disposed of, all of the things that we've come across.

And importantly, they also underline in the guidance that you should look to do a data privacy impact assessment. It's, strictly speaking, for general run-of-the-mill monitoring. Not necessarily required, but if it's the more intrusive aspect, if it's the biometrics that you're using . . .

PWC had produced a facial recognition element for their employees that were working in sort of banking and finance sectors. And their justification was that this was sort of a second or third factor, where you could authenticate users and employees. But it also brought along with it that there was a clear aspect where the monitor had to be on and your face had to be recognised. And employees didn't like that. It felt intrusive and they couldn't understand why it was necessary, and there was kickback in relation to it.

So, for the sort of biometric stuff, it's absolutely necessary to do the data privacy impact assessment. But the guidance underlines that it's always a good idea and it's good practice to do it in any event. It keeps you right in case that there are issues that arise.

I was just going to mention . . .

Christine:  Sorry to interrupt. Seamus, I just wanted clarify. So a good reason for monitoring people when they're working from home, is it enough to say productivity? Is that a good reason for monitoring?

Seamus:  No, I don't think that that is sufficient. In every contract of employment that you have, the pillars of the contract are always trust and confidence. And whenever I was preparing for the seminar, that was the real issue that was bouncing out at me across anything that I read, or that I was researching, or that I was thinking about.

A massive issue comes down to the trust that the employer and the employee have. The employer has to trust the employee to do the work, and the employee has to trust that the employer will allow them to do the work, and that there will be space for them to have all the usual things in relation to the progression and all those sorts of things. But ultimately, it is about trust.

There's a great piece that I read about it, and it's about, ultimately, productivity paranoia. For me, that's what I was able to break it down to. It's paranoia of employers saying, "Are employees being productive whenever they're not in the office, when they're working from home? When we can't see them, what are they doing?" That's the bottom line of it.

And it's simply the idea that employees are not putting in the hours because they're not in the office. If they're out of sight, they can't be doing the work, and that all does simply just boil down to trust.

And I was going to mention just as well about that employment aspect of it, that there are employment considerations that need to be given. And I'll just jump to the really interesting point I think on all of this, is that if you have an employee that refuses to be monitored, if you have somebody that refused to come onto your Teams call and wants to keep their monitor off, or you have somebody that . . .

We heard about these stories about . . . It was almost like a primary school class attendance roll at the start of every morning, where everybody had to put on their monitors on Teams and say, "Present", that they were there, and those sorts of things that were happening.

Where does it all take you to if an employee doesn't conform and comply? It takes you to a place where you might say, "Well, listen, we're going to discipline you. We are going to discipline, and we could end up in a place of dismissal".

The onus will always fall back on the employer. For that decision to be reasonable in the circumstances, it has to be within the bound of reasonable responses. And if you end up in a tribunal and you then are saying to your tribunal, "No, we needed to know whether or not they were present and doing their work", I think that that tribunal is going to have issues with that, saying, "The relationship is trust and confidence, and where does that take everybody?"

So I think, ultimately, where an employee doesn't comply, doesn't agree to have their monitor on, and says no during an appraisal or review or performance management, saying, "No, I'm not happy with the intrusiveness. I think it's overbearing", and the employer says, "Well, we have no choice but to dismiss you then, because you're refusing a reasonable instruction", or, "You're being insubordinate", or something like that, the employer is going to have to justify that at a tribunal hearing. And I think that's going to be difficult to do.

Christine:  Yeah. So I suppose you really need to be thinking about, "Okay, we want to monitor employees for a legitimate reason", but you need to think of what's the least intrusive way to go about doing that. So it's not just, "Oh, we need everyone to have their cameras on". You can't just have a blanket policy of that. Would that be fair to say?

Seamus:  Absolutely. I think that the four main things for me, really, just to sort of close that section off, is that GDPR and the Act do not prevent you from monitoring, but what they do is they set out that legal framework to allow you to do that. And it's balancing the intrusion of with the needs of the business.

You definitely need to make the employees aware of the nature, the extent, and the reasons for the monitoring, unless there's some sort of exceptional circumstances. And there could be maybe in banking and financing worlds and things like that, where you can't just be as open. But employees need to be aware, and they must be clear what the purpose of the monitoring is for. Why are you monitoring?

If you're going to say to an employee, "Well, I'm monitoring to make sure you're doing your job", I think that's a problem. If you say that every employee, could you imagine the damage that that will do to the relationship? That makes an employee feel that they're not trusted. Will they stay with that employer? Probably not.

And the last one is really looking to make sure that you carry out your data protection impact assessment. Basically, for any monitoring that is going to be high risk or where it's going to impact upon the rights of the workers, I think that that is a good way to manage it. You do it, you keep it, and you can refer back to it whenever you need to.

Christine:  Yeah. And I think you need to be aware that when you are collecting data, you may well be privy to data that is more sensitive than other data. So you may well find out an employee is ill and they disclosed something about their medical history, and you inadvertently find out about it. Or their religious beliefs, or something that becomes that very sensitive type of data. So you need to be alert to that, really, don't you?

Seamus:  Absolutely.

Christine:  Yeah. So other than using kind of snooping technology, cameras, keystroke, all of that, what would you recommend as an alternative to that?

Seamus:  I think that, ultimately, where your concerns are around productivity and wanting to know if your workforce is being productive, you do need to have some way to look at the input and the output of it all.

And I think for me, Christine, the start of that is really about a discussion and agreement with your employees about what their goal is, what the achievement is for their role, and that should be what you're monitoring, to see whether or not those goals have been achieved.

Those goals can be target-based. You can say, if you're working in a factory, "The target here is to produce 100 products a month, and that's your job to do that. They'll be counted and we'll know whether or not you've overdone it, or you haven't performed what the expectation is".

But again, that's about being very clear and giving a clear understanding of what's expected, what the role is, what the achievements are, and when that will be reviewed. I think that's in the simple format of it.

If I was to look at it from a target-based productivity, it's the input and the output and looking at the data that you have available based on real-time outputs, not necessarily on how many emails you've sent during the day or how many times that you have typed documents during the day.

All work is different and it doesn't fit into one box. If I take the example of solicitors and the types of things that you will look at, obviously everybody knows for solicitors, fee targets are one of the big factors for all law firms.

And you could sit and do your job in five hours a day and hit your target and more during the day in relation to your fees. Other people, they might have to work 10 hours a day just to hit theirs. It depends on the work, but that should be fed, obviously, and be part of that process.

But other things that you would look at, you'd be also looking at client feedback. You'd be looking at what maybe new business that you brought in, what business you retained during the year, what clients you retained, your marketing contribution, your contribution to your CSR, your corporate responsibility aspects, and things like that.

So it just can't be monitored on one thing, but you don't need to be spying or monitoring your employee every day in the office in order to gain that information.

It's that aspect of you could have somebody that's in the office for eight hours a day and doing nothing, looking busy, but they're not actually producing anything. So you do need to have some way of monitoring the objectives, but I think that is different than monitoring the person themselves and two distinct ways.

Again, the employee should be provided with the information that the employer has sourced or obtained, and should be aware of that. And whether or not you're going to be looking at reviews on a weekly, monthly, quarterly, biannually, or annually, whatever way the reviews are done, there's feedback given to the employees. And if there are management reports, those are shared, that employees are clear as to how their performance will be managed and monitored.

You're looking as well at the feedback of others. How is somebody else on your team performing? And there is completion of appraisal forms, and there's completion of review forms.

All that sort of information can be used in order to conduct a review and see how somebody is performing without this unnecessary spying or monitoring of employees behind their backs, when they don't know, and it causing difficulties in the relationship.

Christine:  Yeah, I think there was one comment made during your session at the Annual Review that you reap what you sow. So if you trust employees, they in turn will trust you, and you'll get better productivity out of them.

And I think what I've noticed in the Republic of Ireland Annual Review this week . . . The Northern Ireland one was a few weeks ago. But what came out in loads of sessions is transparency. You really can't go wrong if you're being open and honest with your employees, and it seems to be there's a big push for that in every area of employment law. So I think that can only be a good thing.

Seamus:  Yeah. And certainly from a tribunal aspect, that's what the expectation is whenever you end up at a hearing. And often, the judge will ask the question whenever it hasn't been dealt with in cross-examination or whatever it is. The judge will say, "Well, what was the communication around that? What was discussed? What was the employee told? How were they to be aware?"

Really interesting just as part of that . . . And we're talking about being open and transparent. Microsoft did a survey back in September of this year, and the survey said that 87% of workers felt they worked equally or more efficiently at home than they did in the office. Eighty per cent of managers disagreed with that. This was their survey.

And then it said 87% of workers reported that they were performing just fine. Fair enough, you would expect employees to say that. But just 12% of employers said that they had full confidence that their team is productive.

And this is a company, Microsoft, where you would imagine that that very high-end, top-end monitoring is going on. You just wonder a lot of the time if they're monitoring in that kind of way, are they missing the real productivity that happens?

Christine:  Yeah. They're missing the point it. Are they still keeping their head above water, doing a good job? Are they satisfying their customers? All of that.

So, yeah, I think presentee-ism needs to go, doesn't it? Because as you say, there are some people that come into the office and spend an awful lot of time on their phones and walking about, having a chat.

I honestly think I personally am more productive at home now. I have my wee desk set up just the way I like it. When I go into the office, I think there are just so many distractions for me now.

Now, I know my job is that type of job. A lot of thinking goes on. But I think a lot of people find they're more productive at home. You don't have the people walking up, or you've had your tea break, but then someone else is on a different tea break schedule and comes past and has a chat while you're trying to get into something. I can find that quite distracting.

Just to finish up this wee section, ICO finds that that's kind of what looms if you do the wrong thing. Do the ICO have the power to fine you for misuse of data in that way?

Seamus:  Absolutely. There is a power for the ICO in relation to fines, in relation to making publications. And these publications are all open to the public. So if they do an investigation, make a finding, they publish it.

And they do have the power in relation to . . . I mean, this is just treated as any normal breach of data. So off the top of my head, trying to remember, isn't it a maximum of €20 million, or 4% or 5% of turnover, or something like that? I can't remember . . .

Christine:  I can't remember either, Seamus, I'm ashamed to say.

Seamus:  . . . precisely what it is. But they have those powers.

I couldn't actually find any cases where for these specific issues, where ICO have taken an employer to task over monitoring and breaching data laws in relation to it for employees.

I did come across some cases where employees had been admonished, but essentially, the employer was the liable party, specifically around health trusts and employees snooping around in other people's medical records and things like that as well. That seemed to have been reported quite a bit and fines issued in relation to it.

But I've no doubt that as the technology goes, it gets tighter and tighter and tighter. And as much as it gets better, the downside is it leaves a trail for what employers are doing. They can't hide away from that either. So there is always the risk.

Maybe I'll just mention one case, and I did mention this at the seminar. It's a case of Chetu. It's a Dutch case. Essentially, Chetu are an American company based in the Netherlands, with an office there. An employee refused to keep their monitor on for their nine-hour shift every day that they were working. I think it was specifically about a programme that they were working through in the office.

I'll just read out what the employees said to the Court. The employee said, "I don't feel comfortable being monitored for nine hours a day by a camera. This is an invasion of my privacy. It makes me really uncomfortable. That is the reason why my camera is not on". The employer could already monitor all activities on their laptop, and sharing screens, and things like that.

What the employer said was this was a reasonable task that it wanted to do, that it was no different from observing an employee in an office environment. And you have the European Court of Human Rights on this one. What they said was, "Video surveillance of an employee in the workplace, be it covert or not, must be considered as a considerable intrusion into the employee's private life".

And they found in the circumstances of this case, they said there was no sufficient justification for the monitoring taking place, and they awarded an employee €75,000. So about £65,700 was what the award was for.

And I do think that we'll start to see more of these cases coming through. This was a Dutch case, but obviously, it was the European Court of Human Rights that dealt with it. Importantly, bringing it all back, it was about the justification for the monitoring.

Christine:  Yeah. I think I would have to wholeheartedly agree with the Court's decision there. Yes, if I'm at my desk in my office, people can see I'm there, but there's certainly not someone sitting opposite me staring at me for the duration of my day in the office. So, to me, it seems excessive. An interesting one. Thanks for that, Seamus.

We are going to move on to our next section about work Christmas parties. And we've got another poll lined up for you guys. I'll just give Maria a wee minute to get that sorted. Oh, she's very speedy. There we have it.

So, "Are you planning an in-person work Christmas get together this year?" We've got, yes, we can't wait to hit the dance floor, or no, COVID gave us the welcome excuse to stop doing them.

So, as I said at the start, Christmas parties are making a comeback this year. COVID is on the wane, thankfully, and we've got the drunken antics, inappropriate comments, and everything else that goes with the parties to look forward to.

So let's see how many of you are planning them. Eighty-six per cent are hitting that dance floor, Seamus. I'm very pleased to hear that. Legal-Island certainly will be, and I know O'Reilly Stewart will be too. So what do you think? I think we're right to be talking about this today.

Seamus:  Yeah, absolutely. Eighty-six per cent is a good . . . Christmas is back, and all of that. I suppose nearly 15% of people there almost are saying that they've abandoned and got rid of them because they can be a bit of a headache. There's no doubt about it. There are issues that arise at the Christmas dinner every year, good gossip and chat for the remainder of the Christmas period, and hopefully, well forgotten by the time everybody gets back to work in January.

But there's always a worry about Christmas parties. I suppose this year, Christine, if you haven't had one from 2019, there are a couple of factors that I think impact it this year. You haven't had one for a long period of time. People might be very keen and spirits may be very high.

The other thing is that we've had such a turnover in staff in most places because of the way things have been since COVID. You might have a lot of new employees. People have been working from home. They're not in the office all the time. Some people might be very keen to get to the Christmas dinner to see everybody, to have that sort of collegiate sit-down dinner or drink together, or whatever it is.

And then you might have a lot of new people as well. It's a good way to get to know people if it's maybe the first time that there has been a function in work for these new people. That all, I think, is great.

There's a risky downside with that as well, particularly in relation to if people have been holding in their grudges for three years and now they get an opportunity to tell that person face-to-face what they think of them, or something like that. There could be a lot of pent-up issues that have maybe been building up through the working-from-home aspect and things like that as well.

Look, it's always the risk with the Christmas party that you'll always have maybe one or two people that overindulge, that issues arise, things are said. It's all the classic stuff in relation to fights breaking out, inappropriate touching, all of those things.

But ultimately, it is there to be a supportive mechanism, a social mechanism, a good welfare piece for colleagues to sit down to get together and to enjoy themselves.

I suppose it's always just watching the boundaries of that and making sure that it is done in a respectful way, and that there isn't any sort of serious downfall that happens as a result of it.

I think maybe some of the other things are just around the welfare pieces of about the Christmas dinner. And I think it's helpful for employers to set out clearly what the Christmas dinner is going to be and what it's about, where it's going to be. Is the event being paid for by the office? Is there a contribution to be made in relation to it? Will there be a free drink? Will there be a free bar all night? Will there be a bottle of wine per table, and that's it? It's the thoughts in and around that.

And then it's the welfare piece at the end of the night. Letting people know when the event finishes, how they might get home, whether they're going to be getting taxis, whether the organisation is going to put taxis on for them. It's very difficult at the minute to get a taxi anywhere. What about public transport? What's available? Where is the venue? How close is the public transport aspect? And making sure that everybody is getting home safe.

And then just that piece of the next day, that if it is during a weeknight and if you have people that are maybe driving or having to drive places the following morning, that they're not over-indulging and putting themselves at risk.

And ultimately, we know the law is fairly clear that those work events are extensions of the workplace, and that horrible cringy idea of whether or not you put a memorandum out to staff in advance saying, "This is what we're going to do".

Christine:  I was going to bring that up. Should the HR be sending the old "Grinch that Stole Christmas" email saying, "Have fun, but not too much". And should you actually mention, "These are things that we consider gross misconduct"? It kind of takes the fizz out of it a bit.

Seamus:  It does.

Christine:  But it is a bit necessary, isn't it?

Seamus:  Yeah. I mean, I think it's a really hard balance. And ultimately, again, the legal aspect, people need to know what the . . . I suppose following through what the ethos of the organisation is and what the expectations are in relation to behaviour at work-related events.

Ultimately, if you're in a party room with 300 other people, and there are 30 other businesses that are there, and you have one employee that does something and lets the side down, that's reputational damage for the organisation, for the company, or for the employer.

And you don't have to look back too far in recent weeks to see where those sorts of incidents are happening. People tend to forget at work events that . . . As they say, once the drink goes in, the wit goes out. They tend to forget that they are representing the organisation that they are working for and there's a public perception in relation to all of that.

And we've all been to those Christmas parties where there have been fights and they've said, "Oh, that's all the employees from such and such". There's a damage there. And there's also a damage for if your company was to go back to try to facilitate a conference or some sort of event at the premises again, they might not have you back if any of your employees have damaged property and things like that.

So it is a difficult one. I think it is a difficult balance to get. I think the best situation that you can have is to have something in the staff handbook about work-related events, or after events, and that you're maybe gently referring the employees back to the policy in advance of the event itself, rather than sending a big laborious email out telling everybody that they're going to have to sit still and not do anything bad at the Christmas dinner.

It does take the taste off it somewhat, absolutely accept that, but I do suspect that there will be a situation where employers and organisations have had their fingers burnt previously. And when we look back at that poll, that 14% could well be those that have just said, "We're not doing this anymore. It's too much of a risk". It's a real pity, but it does happen.

Christine:  Yeah. And what about on the night? If HR or a manager spots misbehaving, do you intervene then and there, or is it mental note for the next day to deal with? What do you think?

Seamus:  I think it depends on the type of behaviour. If it's clear behaviour that is either of an assaulting or a harassing nature, it should be stopped there and then. I don't think that there's a capacity to leave that to be dealt with the following day.

And it may be that you're approaching the employee and saying, "You need to go home. It's the end of the night for you, and you need to leave", where somebody is completely out of hand. And again, looking at the welfare aspects of that also.

But if you see a little bit of a minor event happening that really isn't acceptable, but you're all right on the Christmas party, it may be a mental note for a discussion at the next available opportunity to say, "Look, that happened, witnessed it, not appropriate. We'll not want to be seeing that happening again", or if you felt the need to go down a stronger line with maybe formal action. 

But I do think that HR, if they're dealing with it, it's their Christmas party too. So it maybe is that they're taking a mental note and not wanting to get into situations where there maybe is alcohol being involved, and it can enflame the situation as well. You do need to be careful with that.

But certainly, where it's something that is entirely inappropriate and needs to stop there and then, I think that there needs to be an ending to that. And if that means taking parties and taking them outside and having discussions, that needs to happen. Ultimately, if there is something along the nature of an assault or harassment happening, the employer will be liable for that.

Christine:  Yeah. So just to finish up, Seamus, what would be your top tips for the Christmas party season?

Seamus:  I think the safety aspect. I think watching out for anybody that is over-indulging or for anybody that becomes erratic. Sometimes people will go to these events and they'll take alcohol and they'll have maybe an adverse reaction to it. They might never be back at the Christmas party again after that, but it's watching out for those individuals.

Maybe somebody that's getting leery and maybe you're thinking to yourself, "Well, look, we just need to watch this person because this is going to go down a bad track". And it may be that you're having to have a conversation to say, "If you're going to stay, you can't have any more to drink", or even, "We need you to leave".

So I think keeping an eye on those individuals and enjoying yourself, but also keeping an eye out for those particular difficulties that arise.

I think just that welfare piece, making sure people are able to get home. What is the responsibility in relation to that? If the office is taking the group out and they're paying for the meal, is there a responsibility then to make sure that everybody does get home safe and sound? And whether or not you can facilitate a bus or some sort of transport on that.

Or if people are at the end of the night waiting around for taxis, they're not maybe left on their own, and that there is that sort of welfare aspect of it.

And I think the third one is just trying to enjoy it. It is the Christmas party after all. It's a celebration. It is a time for colleagues to get together. You know yourself that most of these go off without any difficulties. And if there is an issue, it tends to be just one employee that ruins it for everybody.

But do try and enjoy it. We've had a rough number of years. It's maybe the first opportunity that people are getting out, with new people in the office as well, new people in the workplace, and trying to enjoy and celebrate the night.

Christine:  Brilliant. Something you mentioned that I think is a great tip is having it in your policy what acceptable behaviour at work events is, and directing people to that. I think that is a really good way of getting the content of the Grinch email out without raining on people's parade. I really like that one, so I think that's definitely one we'll be using.

So thank you very much, Seamus. We've come to the end of our very last Employment Law at 11 of 2022, believe it or not. Thanks so much for doing the webinars every month with us. We really enjoyed it. And thanks to everyone for coming along.

You'll see on your screen there Legal-Island has got a new eLearning Social Media in the Workplace course, which has just been launched. So please do look out for some information on that in your post-webinar email.

Employment Law at 11, obviously, is available on Spotify, Amazon Music, and Apple Podcasts as well. So do like and subscribe, as the kids say, and you'll be to catch up with anything that you've missed with me and Seamus.

And me and Seamus are both on LinkedIn, so please send us a connection request. We're always looking out for new people to follow us, so please do that.

Myself and the rest of the Knowledge Team have been working extremely hard on events for next season in the new year. I can't believe I'm talking about the new year. We've got lots of events. We've got cost of living coming up. We've got an event on blended and hybrid working, which links very well to this webinar. We've got an event on disabilities and reasonable adjustments, and we've got our HR conference in April and data protection in May.

So please do look out for emails, and it'll be great to see you along to some of those. As I said, we've been working very hard on them.

But really, that's everything from me and Seamus. We thank you very much for coming. Have a very happy Christmas. Enjoy your Christmas days. Don't get stressed by them. Do enjoy them. We will see you again in the new year. Thank you very much.

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This article is correct at 02/12/2022
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Seamus McGranaghan
O'Reilly Stewart Solicitors

The main content of this article was provided by Seamus McGranaghan. Contact telephone number is 028 9032 1000 or email seamus.mcgranaghan@oreillystewart.com

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