Legal advice: fighting at the Christmas party

Fighting Father Christmas
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Layla Bunni is a senior associate, specialising in employment law at Starr & Partners LLP. She advises on a wide range of both contentious and non-contentious employment issues. Her legal advice column continues: this month an office Christmas party has turned into a brawl. What action should be taken?

It’s that time of year again, and to celebrate Christmas, all the employees and their partners were invited to attend the company’s Christmas celebration event at a local hotel. The celebrations involved a drinks reception, followed by a sit down meal. It was widely attended. However, an incident occurred between two employees (Mr A and Mr B) during the evening. Both employees worked in the same department and were at the same level.

It was alleged that both employees were involved in a physical fight with each other, with the initial incident alleged to have taken place at the bar area in the hotel. This was then followed by further altercations involving physical fighting taking place between the two men immediately outside the hotel.

How should this be handled?
At this time of year, many HR managers will end up having to deal with similar issues concerning office parties and behavioural issues happening outside the workplace. The basic rule is that if the incident occurred at a work related social function, even where part of the incident occurred outside the actual party venue, this clearly falls within the remit of it being a work related disciplinary offence.

The investigation process
It is important that before any disciplinary action is taken against either employee, a full investigation is carried out to establish exactly what happened on the night. This will involve speaking, not only to the two employees involved, but also to those employees who witnessed the incident.

On the basis that the incident occurred off site at a hotel, as part of the investigation, the investigation officer should check with the hotel to see if there was any incident report logged at the hotel by those security guards or hotel employees who may have been involved in trying to break up the fight.

This report log could help to determine whether one of the employees was deemed to be more of the aggressor, or if both employees were both as aggressive as the other. It could also be considered to be a more independent form of evidence.

Is suspension appropriate?
It is at the investigation stage that the company will need to consider whether or not it is appropriate to suspend the two employees. This is particularly relevant given that both employees work alongside each other. The company has a responsibility to ensure that similar incidents do not occur again within the workplace.

On the basis that there has not been any findings at this point as to whether or not one employee was considered wholly responsible for altercation, it is more appropriate to suspend both employees pending the outcome of the investigation.

Disciplinary process
Once it is established that the altercations did take place, in order to establish what both employees’ involvement was in the incident, it will be necessary to follow a disciplinary process with both of them. To simply determine after the investigation process, but prior to the disciplinary stage, that one employee was considered to be more responsible for the fight taking place, is likely to be deemed to be a predetermined decision and could be construed as an unfair decision by that employee.

It is certainly possible however, that the outcome of the disciplinary process may be different for both employees, with one employee receiving a lesser sanction than the other. This decision should only be made once all of the evidence has been considered, and both employees have been through the same disciplinary process.

What disciplinary sanction can be applied?
The answer to this question will very much depend on the facts of the case and also what the company’s disciplinary procedure and/or dignity at workplace says in relation to whether or not physical violence is deemed to be an act of gross misconduct.

If the company’s procedure(s) clearly provide that physical acts of violence are deemed to be gross misconduct and could lead to summary dismissal or dismissal without warning, the company can rely on what is contained in its policy to justify dismissing one or both of the employees summarily.

Further action
The behaviour of some employees does unfortunately take a nosedive during the festive season, with them assuming that the normal rules of workplace do not apply when attending work related functions/parties. For those employers whose Christmas parties (official and unofficial) have yet to take place or are in full swing, it is advisable that a company wide email or note be circulated to remind all employees of the company’s policies with regard to dignity at the workplace and bullying and harassment. Employees should also be told that even though the festivities are taking place outside normal office hours, they are still expected to treat all other employees and third parties that they come into contact with at the celebrations with the same level of dignity and respect that is generally expected of them at the workplace during their working hours.

If such reminders and warnings are given, employers will have a reasonable defence to show that they took the necessary action to warn employees of what the repercussions were likely to be for their unacceptable behaviour. Additionally, if the circumstances involve allegations of harassment, the employer will be in a position to show that it took all reasonably practicable steps to prevent that treatment from occurring.

This article was originally published in December 2009.

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