Avoiding Legal Hangovers: Best Practices for Office Holiday Events

It is the season to be jolly and with that comes a time where employees can relax, celebrate and enjoy their office Christmas parties while they wind down to the end of the year. This time of year comes with associated risks where the possibility of unprofessional behaviour is at an all-time high. It is vital for employers to understand the risks and responsibilities so that they can protect themselves and their employees and make the most out of the festive season.

Managing risks to health and safety

Work parties are an extension of the workplace, and as such, employers bear a responsibility to diligently take all reasonable steps to ensure the health and safety of their employees and prevent any unlawful or inappropriate behaviour at these events, pursuant to section 19 of the Work Health and Safety Act 2011 (Cth). Behaviours such as discrimination, harassment or bullying can be all too evident at work events, and it is for the employer to ensure they are taking step to mitigate and manage the improper behaviours. This risk is particularly prominent at work party events, where the presence of alcohol may increase the risk of safety incidents (potentially leading to workers compensation claims) as well as incidents of discrimination, bullying and sexual harassment. Employer liability also extends to any accidents or incidents which involve an employee who is travelling home from the work functions – accordingly arrangements should be made to ensure that they travel home safely.

Ultimately, the employer may be vicariously liable for such behaviours if undertaken in connection with their employment, unless it can be established that the employer undertook all reasonable steps to prevent the employee from engaging in that conduct.

Preventing sexual harassment and sex discrimination

More recently, amendments in the Sex Discrimination Act 1984 (Cth) have led to employers having a positive duty to take proactive and meaningful action to prevent sexual harassment, sex discrimination and other unlawful conduct, by taking reasonable and proportionate measures to eliminate the following behaviours as far as possible:

• Discrimination on the ground of sex in a work context;
• Sexual harassment in connection with work;
• Sex-based harassment in connection with work;
• Conduct creating a work environment which is hostile on the ground of sex; or
• Related acts of victimisation.

This positive duty aims to create change within workplaces and requires employers to take proactive and meaningful preventative action, rather than merely reacting to workplace sex discrimination, sexual harassment and other unlawful behaviours, after it has occurred. Employers must prepare for their Christmas events with this in mind.

Takeaway tips for employers

Employers should consider the following to stay proactive and effectively manage the festive season:

1. Set clear expectations – Communication before the event is key. All employees should be trained on and reminded of applicable workplace codes of conduct and policies which should effectively reflect behavioural expectations at work social functions and how disciplinary procedures would be managed, should they be required. It should be made clear that there is zero tolerance for sexual harassment and other unprofessional behaviours.
2. Plan the event thoughtfully – Employers need to consider their choice of venue, time and activities with the safety of their employees in mind. Responsible drinking must be encouraged, non-alcoholic alternatives should be served and there should be plenty of food available to the guests. Part of the planning requires selecting an event location which is accessible to all employees, considering and addressing any potential accessibility issues. The employer must also includes the urging of a workplace appropriate dress code.
3. Encourage inclusivity – The Christmas party must be inclusive and respectful of all the backgrounds and beliefs of the employees. This may mean avoiding activities or themes that may be exclusionary as well as considering dietary needs of all employees.
4. Warn employees of social media risks – Sharing photos and videos on social media is a part of the world these days, however it is important that employees exercise caution. Once something is on the internet it will be there forever, and it has significant power to potentially harm the business and other employees.
5. Supervise your employees – A few responsible staff should be appointed to oversee the event and ensure everyone is behaving appropriately. These individuals should be approachable and be able to handle issues discreetly.

What if an incident occurs?

After Christmas events are over it is important that employers follow up and ensure it was a positive experience for all employees.

There must be a safe and confidential way employees can bring complaints and employers should ensure they are open to hearing complaints. A thorough and prompt investigation should be conducted following any reports of incidents, affording all employees procedural fairness and interviewing all relevant parties and witnesses.

The Fair Work Commission held in Keenan v Leighton Boral Amey Joint Venture [2015] FWC 3156 that the dismissal of the employee for his inappropriate behaviour at a work Christmas party was unfair, because the substance of the allegations against him were never truly put to him. It was alleged that after the employee had consumed a large quantity of alcohol, he had sexual harassed several employees, spoke inappropriately to a manager, and bullied several employees. While these allegations would likely justify dismissal, this case demonstrates the importance of providing all accused employees with procedural fairness throughout the investigation of any allegations, prior to terminating their employment.

The work Christmas party is something to look forward to. By taking these steps and being aware of the risks and responsibilities, employers can host a very demure, very mindful Christmas party.

If you would like any further advice on how to effecting prepare for managing workplace functions, please contact our Employment, Workplace Relations, and Safety group at McCabes Lawyers.