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Following the relevations around “Partygate”, John Hayes explores the blurred line between work...

Following the relevations around “Partygate”, John Hayes explores the blurred line between work and play in the Times today

Managing Partner, John Hayes, writes in the Times Law on “partygate” and how, often, proper leadership and defining a good workplace culture can be more impactful that a strict adherence to legal obligations which can be opaque and change over time.”

Blurred line between work and socialising rules offers No 10 wriggle room

Boris Johnson is accused of a failure of judgment over No 10 parties, but the Covid regulations are vague

Sue Gray released initial findings from her inquiry into lockdown socialising at No 10 and the Cabinet office on Monday.

In an initial “update” report, the senior civil servant pointed to “failures of leadership and judgment” and excessive drinking at work on government premises during lockdown. These events (or parties?) are now the subject of investigation by Scotland Yard.

However, the line between work and socialising can often appear somewhat blurred — especially during an era when the home has become a workplace. Under the legislation that would have covered behaviour in May 2020, the Covid regulations in England forbade “gatherings” “in a public place” except “where the gathering is essential for work purposes”.

Downing Street is likely to argue that No 10 is not a “public place”

We can probably expect Downing Street to argue that No 10 is not a “public place” and therefore, that regulation does not apply. Or that the gatherings may have been “essential” for work purposes.

In June 2020 the Covid regulations also forbade gatherings indoors that consisted of two or more persons unless the gathering was “reasonably necessary” for work purposes. And they stated that a person who contravenes a requirement in regulations commits an offence.

But there is sufficient opacity in the regulations to give the No 10 some wriggle room to argue that no offences were committed — or at least in relation to certain “work” events.

But that is not necessarily the end of the matter.

Sue Gray’s update on Monday was limited but still damaging for the government

Case law provides a relatively expansive definition of what constitutes “during the course of employment” for the purposes of vicarious liability. For example, would an inebriated attendee at a No 10 party invited by a senior work colleague have a claim against No 10 if, say, that person had broken an arm by falling from a younger Johnson’s swing?

There is no one-size-fits-all definition of what constitutes “during the course of employment”, but some clear principles apply.

Culture is defined from the top and most people will interpret the BYOB — bring your own booze — invitation from a senior colleague as indicating a social event.

Some workers will owe higher duties than others, including those regulated and working in key industries, including the NHS/care sectors and senior executives who owe “fitness and proprietary” obligations. That could include certain public officials.

Some junior employees may feel pressured to attend events that appear to be an uncomfortable mix of business and pleasure, particularly if they feel that career progression depends on it. Clear guidelines from employers are needed as to when the party starts, and work stops.

Ultimately in the world of work, “culture eats strategy for breakfast”. In No 10, as in business, work culture as promoted by senior management is often more important than arguments about strict adherence to legal obligations, which may be elastic and change over time.

John Hayes is the managing partner of Constantine Law, a firm in London

This article first appeared in The Times on 3 February 2022


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