danger-lurks-secret-santa-sackOver the last few years employees have increasingly embraced the Secret Santa “tradition” as a way of joining in the festive spirit and supposedly joining in the Christmas fun. Unfortunately life is not quite a simple as we would like it to be and we do not all share the same sense of humour, some are more robust than others. Sometimes it’s funny and sometimes it’s not. We have all witnessed the person caught on the “wrong day” and how things can all get horribly embarrassing and escalate very quickly.

Is an employer responsible for the Secret Santa presents?

You would think not but there are dangers lurking for employers in Secret Santa’s sack. The amusing novelty gift with sexual overtones or amusing lingerie may be hilarious to some but offensive to others with a risk of causing a sexual harassment or sexual discrimination action. The comedy hairpiece. big ears, big nose could be construed by some as deeply offensive and tantamount to bullying.

Such divisions being created in the workplace are hardly conducive to a healthy working environment or indeed a happy Christmas but further damagers lie in store for employers.

The recipient of such gifts may feel that they have been publicly humiliated with the company’s approval and decide to take action against their employer. The person giving the gift may be a director or a manager in the company. This may all seem a little remote and employers will certainly feel “our staff would never do that!”

Add to this that the employee may already be disgruntled at work and is considering leaving anyway, is there a quick cash payout available from the employer.

What can an employer do to reduce the risks of Secret Santa’s sack?

  1. You should inform all staff that taking part in the Secret Santa is entirely voluntary.
  2. Warn staff that Secret Santa gifts can occasionally cause offence and they should consider their participation with that in mind.
  3. Warn staff that no offensive gifts should be bought, gifts that may relate to someone’s sexuality, their race, their religion or any physical characteristics or disabilities are not allowed.
  4. Warn staff that anyone breaching the gift rules of  Secret Santa may face disciplinary action.

Are employers insured against actions arising from Secret Santa gifts?

Clearly the fact that someone tries to claim against an employer in respect of offensive gift or brings the employer before a tribunal as a result of some form of discrimination or other employment related issue does not necessarily mean the employer is responsible. However the legal costs associated with defending even the most spurious claim can be very costly and if awards are made then the overall costs may have a severe effect on the business.

In terms of insurance, it is unlikely that the public or employers liability insurance will be brought into play here. Public liability policies respond too claims from third parties, not employees and both these policies generally rely on bodily injury occurring.

It is the commercial legal expanses insurance or employment practices liability insurance that would be involved in any employment related issue. if the complaint refers to the actions of a director or senior member of sstaff and the action is taken against them personally then the directors and officers liability insurance policy should respond to such claims on the defendants behalf.

 
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