Don't let the festive season become the silly season

With the festive season in full swing, responsible employers need to prevent Christmas party misdemeanours turning it into the "silly season". It is important for employers to remind employees about acceptable standards of behaviour at work Christmas parties. Christmas parties are social events which can promote team bonding and increase staff morale and are an ideal opportunity for management to thank employees for their efforts throughout the year. However, Christmas parties remain work related activities and employers have a legal responsibility to protect employees from sexual harassment, bullying and discrimination. However, with access to alcohol, inhibitions and standards of conduct may decrease and employers may find themselves liable for the actions of their employees.

Employers must take steps to minimise the risks of potential claims and to ensure that everyone has an enjoyable but safe Christmas party.

Risks and responsibilities

Regardless of the location of the venue, work Christmas parties are subject to the same employer obligations as would otherwise apply in the regular work environment. That is, employers have a duty in relation to workplace health and safety, bullying and sexual harassment, to take reasonable steps to identify, reduce and prevent risks to employees and other attendees.

An employer can be held vicariously liable for the actions of their employees at, on the way to, and from work Christmas parties. Individual employees engaging in sexual harassment or bullying in connection with their employment may also be found personally liable for their actions.

Practical steps to reduce risks 

Practical and simple steps to manage and minimise legal risks and ensure a problem free work Christmas party include:

• Ensure workplace policies (including sexual harassment and bullying) and codes of conduct are up to date and have been recently circulated to employees; 
• Send a friendly reminder to employees prior to the party reminding them of their responsibilities at the party;
• Remind employees what is and is not acceptable behaviour and the consequences of a breach;
• Set a clear finishing time for the party and enforce it;
• Follow responsible service of alcohol guidelines;
• Provide food and non-alcoholic drinks;
• Stop serving alcohol before the conclusion of the party;
• Ensure there are good transport options for employees to get home safely;
• Ensure management lead by example and address any problems which might arise;
• Ensure management are aware of their obligations and responsibilities and that they help supervise the party;
• Remind employees that they should not forget that they are still "at work" when attending the party; and
• Make it clear that festivities that continue after the party are not endorsed by the employer.

A Christmas party is a wonderful way to celebrate all the hard work during the year. Employers need to ensure however, that the party is remembered for the right, not the wrong reasons.

What to do if an unfortunate event occurs

Should it be the unfortunate case that an incident of sexual harassment or bullying occurs, involving a senior executive or otherwise, there is potential for adverse publicity or reputational damage. Employers must therefore, have a rapid response strategy in place which can be immediately activated. The best way to ensure a rapid response is to have an up-to-date policy which:

• Provides certainty as well as flexibility so an employer can deal with complaints expeditiously and on a case-by-case basis;
• Allows an employer to suspend alleged perpetrators of sexual harassment or bullying where necessary;
• Allows an employer to conduct an investigation under the cover of legal professional privilege;
• Provides support and counselling for alleged victims;
• Allows an employer to interview potential witnesses; 
• Provides adequate levels of confidentiality; and
• Ultimately resolves any complaints which may have arisen.

How HWL Ebsworth Lawyers can help

HWL Ebsworth's Workplace Relations and Safety Group provides a 24 hour response service in the event of a crisis event over the Christmas and New Year period. Our dedicated team is only a phone call away. If you require out of hours assistance during this period please call Mark Howard on
0416 052 021 or any of our National Workplace Relations and Safety Group Partners on the numbers below.   

For information on our Workplace Relations and Safety Group click here.

Important disclaimer: The material contained in this publication is of a general nature only and is based on the law as at 13 December 2012. It is not, nor is it intended to be, legal advice. If you wish to take any action based on the content of this publication we recommend that you seek professional advice.