The festive season is almost upon us and that means workplaces across Australia are preparing their end of year celebrations. But employers need to be aware of potential risks of office Christmas parties and the possibility of being exposed to, for example, sexual harassment and/or discrimination complaints and workers' compensation claims.
The following blog post provides some golden rules to help organisations prepare and minimise the risks of their end of year celebrations and help ensure a safe and memorable celebration for all.
Christmas functions are notorious for an increased chance of safety-related incidents (both at the function and leaving it) and other risks such as sexual harassment or other forms of discrimination (for example, derogatory comments about a person’s ethnicity or their sick leave history that the employee thinks is ‘just a joke’ or did not intend to offend).
Alcohol combined with a party atmosphere increases the likelihood of an untoward incident occurring even more. Above all else employee safety should be at the forefront of an employer’s mind. And, if discrimination or harassment occurs at a work function that is organised or sponsored by the employer, then they are very likely to be vicariously liable for such behaviour unless they can demonstrate that they took all reasonable steps to reduce, mitigate and manage the conduct.
In addition, continuing to serve drinks to an alcohol-impaired employee may lead to liability arising from the law of negligence. This liability can also extend to an accident that involves an employee who is travelling home from a work function. Another further risk is those involving negligence claims from third parties. Third party negligence claims can arise when:
Importantly, there is now a positive duty on employers and persons conducting a business or undertaking (PCBUs) to eliminate workplace sex discrimination and harassment.
This change requires employers and PCBUs to shift their focus to actively preventing workplace sex harassment and discrimination, rather than responding only after it occurs. The positive duty requires employers and PCBUs to take reasonable and proportionate measures to eliminate, as far as possible, sex discrimination, sexual harassment, sex-based harassment, behaviours that create a hostile workplace environment on the ground of sex and related acts of victimisation occurring in a work context or in connection with work.
There are a number of steps that should be undertaken before, during and post function to manage incidents that may occur at a work function. Given the above risks, the guidelines below apply to any work sponsored event (at which alcohol is served) with additional considerations for a Christmas function.
Employers should be aware that workplace groups, such as a Social Club, do not operate in isolation and will not shield the employer from liability for functions they organise. Therefore, employers should oversee and have final approval of Social Club sponsored functions as the employer is ultimately responsible for the safe conduct of such functions and is potentially vicariously liable for what occurs.
Ensure relevant policies and code of conducts specifically cover employee behaviour at social functions. A Group Members can benchmark their policy against our Sample Discrimination, Harassment & Bullying Policy for appropriate wording or contact us or call the Ai Group Workplace Advice Line on 1300 55 66 77 for assistance.
Having an appropriate policy alone is not enough. Employers should make sure that their staff are aware of relevant policies and consider further education (such as training courses) on the type of behaviour that is expected from them.at functions. Such steps can lessen the chance of claims as well as limiting the exposure of the business to vicarious liability. It is recommended that records of relevant policies being read by employees be kept along with any education that is delivered.
Provide a finishing time for the party and make it clear that if employees wish to continue socialising that ongoing celebrations are not considered part of the work function and therefore not privy to the organisation's codes of conduct and discipline policies.
Will the venue ensure safe service of alcohol? If you have employees less than 18 years of age, ensure the servers understand this and that they or employees do not provide alcoholic drinks to them. Is the venue accessible by all employees and guests (e.g. mobility impaired friendly)? Does the ambience of the venue encourage appropriate or inappropriate behaviour?
To help employees get home safely choosing a venue accessible by public transport can also be a good idea.
Will there be enough food? This also goes to the point above. Functions that offer small servings of finger food but freely available alcohol may exacerbate the risk of inappropriate behaviour and injury by increasing the likelihood of employee’s over-indulging.
If the organisation does not have an appropriate food budget (that is, sufficient to cover a meal for each employee), it should reduce the alcohol budget proportionately and ensure safe service. Regardless of food portion sizes, the employer must provide a range of non-alcoholic drink options.
If the organisation conducts a Kris Kringle (or Secret Santa), ensure that employees understand that any gifts they purchase must be ‘G’ rated. This means that the recipient or others who will see the present (or even hear of it afterwards), should not have cause for offence leading to a possible breach of the organisation's policies. All gifts must be suitable for family viewing!
This memo has two key risk mitigation objectives. Apart from reminding employees of their obligations under the organisations policies and to encourage them to be safe and responsible at the function and afterwards, it is also evidence that the employer took all reasonably practicable steps to prevent conduct in breach of its policies.
Members can download our Memo to Employees - Reminder of their obligations at work-related functions template that covers the issues discussed. Employers may also incorporate into their memo key messages about the function such as the venue, start and end times of the function, arrangements for safe transport and Kris Kringle (and appropriate gifts).
If alcohol will be available at the function:
Organisation’s should ensure that at least one senior staff member does not consume alcohol and monitors employee consumption and behaviour at the event. This person should have sufficient authority to ‘have a quiet word’ when necessary to limit or stop drinking (individuals or event wide).
Those responsible should also ensure employees can get home safely especially those suspected of being above or near the legal alcohol limit to drive or are otherwise impaired/‘tired and emotional’ (for whatever suspected reason).
Many organisations include the cost of taxis or other paid transport in Christmas function budgets and offer this way of getting home safely to staff who may wish to have more than a couple of drinks and wish to take up this option. Alternatively, the organisation may wish to organise employees into end of function taxi pools so that staff who live in the same direction or area share a taxi home.
Finally, it should not be forgotten that many employees also attend other organisation’s functions in the course of employment, particularly at Christmas. For example, a manager may attend a string of parties or events held by advisers, suppliers or contractors to the organisation.
These events present the same risk and liability issues as internal functions so organisation’s need to ensure that employees attending outside gatherings in the course of their employment understand the required standard of conduct and consider providing transport options to ensure their safe passage home.
Members looking for further guidance and advice regarding their obligations for social events this festive season can reserve their spot for Ai Group's upcoming HR Fundamentals - Work Christmas Parties – Golden Rules for Employers webinar to be held at 11:00 am on Thursday, 21 November.
This webinar will set out some key principles and provide practical guidance and recommendations in relation to:
This webinar is ideal for HR managers, HR staff and operational managers, who will organise, oversee or take part in the events, and manage any complaints arising from those events and there will be an opportunity for participants to ask questions both during the session and beforehand.
To discuss this topic further, please contact us or call the Ai Group Workplace Advice Line on 1300 55 66 77. Our article Managing the risks of work-related social functions also provides additional information.
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Clinton is the Publications Manager at Ai Group. He is responsible for a number of key services including Annotated Modern Awards, Workplace Relations Handbooks and the management of Ai Group’s HR and Health & Safety Resource Centres. Clinton has a Masters in Employment Relations and previously held advisory roles with the Workplace Authority and Fair Work Ombudsman.
