Tis’ the season to be jolly; for many employees, an opportunity to relax and forget about their work responsibilities and attend the office Christmas party as they wind down for the year. However, many legal risks are associated with this period, including unprofessional behaviour, misconduct, bullying, sexual harassment, and workplace health and safety incidents. Employers need to understand the various legal risks and protect themselves. Below, we set out our seven tips for employers so you can protect your business and make the most out of the festive season.
As an employer, it is essential to understand what employment laws have changed and their implications for your business — particularly the changes to the Fair Work Act 2009 through the new Closing the Loopholes legislation.
1. Be Aware of Your Obligations
Broadly speaking, there are several obligations that you should be aware of when planning risk-mitigating measures for the office Christmas party. The first of these is your work health and safety obligations. The company must take all reasonably practicable steps to eliminate or otherwise minimise identified risks to health and safety. This includes both physical and psychosocial risks, which can be the result of behaviour such as bullying and harassment.
You should seek to implement robust work health and safety policies, including:
- ensuring that your employees have avenues to report incidents; and
- implementing company procedures to minimise risks.
Further, in December 2022, amendments to the Sex Discrimination Act 1984 (Cth) resulted in a positive obligation on employers to take reasonable steps and proportionate measures to eliminate specific conduct.
This means that you must take steps to address:
- discrimination on the grounds of sex in a work context;
- sexual harassment in connection with work;
- sex-based harassment in connection with work;
- conduct creating a workplace environment that is hostile on the grounds of sex; and
- related acts of victimisation
This obligation must inform your company’s preparation for the event. It is no longer sufficient to be reactive. Even where no incident occurs, you may be found liable for failing to take reasonable and proportionate measures to eliminate this conduct proactively.
The Fair Work Commission (FWC) may hold the company vicariously liable for certain misconduct, such as sexual harassment, from one employee to another. Vicarious liability refers to the situation when the law will hold you responsible for your employee’s actions.
2. Set Standards
It is important that you set formal standards which your employees’ must behave according to. You should first ensure that you have an anti-discrimination, harassment and bullying policy in place that is readily available to your employees. This policy should outline the:
- company’s position on what behaviour constitutes harassment and bullying; and
- potential consequences of such behaviour.
Further, you may choose to hold a meeting to communicate with your employees your expectations and guidelines around appropriate behaviour in social settings. In this meeting, you should make it abundantly clear that harassment and bullying that occur at a work event will be disciplined by the company as necessary. You could also do this through a company-wide email.
Finally, employees must understand the company’s expectations with respect to the responsible consumption of alcohol where alcohol will be available at the event.
Additionally, make sure you encourage transparency where an employee feels that those expectations and policies were breached in any way. The business should ensure that employees understand the appropriate channels to report any misconduct that occurs.
Continue reading this article below the form3. Take Pre-Party Precautions
Before the employees descend on the venue for the Christmas function, ensure that you have undertaken a work health and safety assessment to identify any safety hazards. You should monitor and restrict access to hazardous areas during the party to reduce the risk of injury to employees.
Further, you should aim to define the time and venue for any Christmas event clearly. Inappropriate conduct that occurs outside of the specified time and place is unlikely to be considered as your responsibility. In this case, you will not be vicariously liable for any allegations of misconduct. You should make it clear to your employees that you will not endorse conduct outside of the official event.
4. Supervise your Employees
It is generally accepted that there is a sufficient connection between an employee’s behaviour at a work Christmas party and their employment. This applies even if the party was outside of work hours and premises. Therefore, it is your responsibility to take disciplinary action for any breach of company policies. However, it may be difficult to address behaviour that occurs following the end of a formal work function where certain employees continue the event privately.
In the case of Rose v Telstra Corporation Limited, the court addressed the exceptions to the general position that out-of-hours conduct is not relevant to an employee’s employment. These exceptions include conduct that:
- is likely to cause serious damage to the relationship between you and your employee;
- can damage your interests; or
- is incompatible with the employee’s duty.
The case of Stephen Keenan v Leighton Boral Amey NSW encouraged employers to appoint a manager to supervise employee conduct during the Christmas party to avoid any “out of hours” mishaps.
5. Serve Alcohol Responsibly
Employers are responsible for any alcohol served at Christmas functions, especially during an official work function. In most disputes before the courts, the issue has surrounded an intoxicated employee.
Courts have held that employers may be responsible for what their employees do even if they are intoxicated, especially in cases of negligence and injury. Ultimately, the company’s work health and safety obligations continue at a work function, and you are therefore required to take all reasonably practicable steps to prevent risks to your workers’ health and safety.
In Damien McDaid v Future Engineering and Communication, the court ruled that employers have a responsibility to “take steps” to ensure that they serve alcohol responsibly.
Some measures you can take to serve alcohol responsibly include:
- ensuring that the venue of the Christmas party follows responsible service of alcohol principles; and
- appointing a manager to monitor the behaviour of employees and ensure that any severely intoxicated employees are managed appropriately.
6. If There is a Complaint, Follow Correct Procedures
It is essential that you follow the correct procedures in order to avoid any unfair dismissal claims. One of the most common grounds for unfair dismissal is that the employer did not afford procedural fairness in dismissing an employee. For any allegations of misconduct, you should take steps before progressing to dismissal, including:
- conducting a thorough investigation;
- obtaining the views of the allegedly offending employee;
- forming a view on whether the alleged behaviour actually occurred; and
- considering more lenient forms of disciplinary action, if appropriate in the circumstances.
Other forms of disciplinary action aside from dismissal include formal warning letters or a disciplinary meeting. However, you should not take lenient action if this would jeopardise the safety of your other employees.
7. Emphasise Any Social Media Policies
You should ensure that all staff are clear on company policies surrounding social media, even if they are not at work. Smartphones increase the risk of exposing your business to damaging or embarrassing content. Where an employee contravenes these policies, you should address this with appropriate disciplinary measures, including informal or formal warnings.
Key Takeaways
The office Christmas party is the perfect time to celebrate the year and have festive fun with your employees. However, incidents can happen, so it is best to take precautions and have procedures to deal with any inappropriate incidents. If you need any assistance drafting company policies or dealing with an incident, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
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