30th October 2020

Halloween: An Employers’ ‘Nightmare on Elm Street’?

Halloween will be very different from what we are used to this year thanks to Covid-19; no parties, no ‘trick or treaters’ and no dookin’ for apples or, at least, not with anyone out with your household. Halloween festivities in the workplace have also been killed stone-cold dead by strict social distancing and the need to stay covid-secure. However, we all know that employees will nevertheless exercise their right to have fun. Here are the top three nightmares haunting employers.

1.  Dressing to impress or offend?

At the height of lockdown, teams were attending virtual meetings in fancy dress and Halloween is the perfect excuse for teams to dress up. Dressing up is fun, but some costumes can cause offence. Take for example the case of X v Y concerning a gay male employee who worked in a call center which regularly held fancy dress days to raise money for charity. Some of the male staff often dressed as female celebrities and this behaviour led to ‘banter’ directed at the employee, often sexual in nature, which he found highly offensive forcing him to resign from what was an intolerable working environment. He subsequently brought claims of direct discrimination and harassment. The tribunal found that while the purpose of the fancy dress days was not violating the employee’s dignity, it did have that affect and the employer had approved an event that led to conduct that could reasonably be said to have created an intimidating, hostile, degrading or offensive environment for this employee.

In Brown v Young & Co.’s Brewery, the tribunal found that a manager harassed a black pub worker when he told him that he “looked like a pimp” when he was wearing a promotional St Patrick’s Day hat.

2.  Ghoulish goings on with social media 

Even if employees decide not to participate in any form of Halloween celebrations with their colleagues at work, their actions outside of work could result in grievances or disciplinary action where it brings the employer into disrepute or calls into question an employee’s continued suitability for a role. This issue is extremely prevalent around Halloween where employees’ behaviour can come into the public domain through various forms of social media.

Notorious examples include Welsh international rugby player Liam Williams who apologised in December 2014 after he posted a picture on Twitter of himself at a fancy dress party “blacked up” as the footballer Wilfried Bony. Or how about the case of Alcia Ann Lynch who, until her poor choice of Halloween costume as a Boston Marathon victim was posted on Instagram, was just another office worker? She lost her job and her family received death threats.

3. Splitting heads

With more employees currently working from home, and therefore no worries about having to drive to work the next morning, some employees may just not be able to face work after a heavy night of festivities. Some employers may find themselves questioning how genuine the employees’ sickness absence is, at this time of year.  In the case of Ajaj v Metroline West Ltd, the employee was dismissed for gross misconduct on the grounds that he had made a false claim for sick pay, misrepresenting his ability to work. In overturning the tribunal’s decision that the employee has been unfairly dismissed, the EAT confirmed that “an employee who ‘pulls a sickie’ is representing that he is unable to attend work by reason of sickness. If that person is not sick, that amounts to dishonesty and a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship.” If there is clear evidence that an absence is as a result of a hangover and not a genuine illness, it is possible to take disciplinary action.

However, these HELLISH issues should not keep employers awake at night. Like FREDDY KRUGER, employees are powered by their victims’/employers’ fears. These fears can be alleviated with clear policies dealing with dress code standards, levels of absence, bullying and harassment and social media use (both in and outside of work) WITCH set out what is expected of employees. Don’t let your employees drive you BATTY this Halloween season. Instead take advice from your solicitor.

And remember that these policies are not just for Halloween.

Things can go bump in the night on any night of the year…

Donna Reynolds, Partner
Accredited by the Law Society of Scotland as a Specialist in Employment Law & Discrimination Law
Blackadders LLP


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