Executed appropriately, an office Christmas party is an excellent chance to foster connections and mark the year’s accomplishments. Nevertheless, it’s crucial to be mindful of certain legal liabilities associated with these events.It’s that time of year. The ‘Silly Season’. And that means that for many organisations, the official employer Christmas party is imminent.
The starting point for office Christmas parties is that they are an extension of the workplace – employers need to carefully balance holding and facilitating a fun event with maintaining a safe, respectful environment for employees.
Balancing the various risk factors can be an act worthy of circus entertainers. However, a few sensible steps can help manage the risks of ‘Silly Season’ events.
Steps to take prior to the office Christmas party
1. Examine the venue
There are various factors to consider in determining the suitability of a proposed venue.
First is the location of the venue. Be wary of venues in inaccessible, isolated or potentially dangerous locations – for example, hosting the event on a boat. There might be a price to be paid for the ambience or novelty value such venues might lend to an event.
It’s also important to consider the additional risks associated with the venue, such as how easy it would be for employees to get home afterwards (e.g. is it easy for them to get public transport? Will Ubers/Taxis be able to access it easily?).
Also, it’s worth asking the venue for its policy on obtaining surveillance footage in case it’s needed for an investigation after the function. (Hopefully it won’t!)
2. Ensure responsible service of alcohol
It’s no secret that the source of many problems at workplace Christmas parties is excessive consumption of alcohol. It’s important to conduct a thorough risk-management assessment ahead of the party.
Check that the venue has adopted responsible service of alcohol (RSA) principles (the answer will almost certainly be ‘yes’) and how those principles will be implemented during the event. For example, there might be a cut-off time for alcohol service and allowing employees to help themselves to alcoholic drinks without any oversight is asking for trouble. There should also be plenty of water and non-alcoholic drinks available.
Although it will fall under the venue’s RSA obligations to serve food, it’s also important to remind the party organisers to ensure everyone is able to have a substantial meal.
3. Consider the theme:
If you’re having a themed Christmas party, ensure the theme is not likely to cause offence, exclude people or unwittingly lead to inappropriate or discriminatory costumes or displays. Remember – this is 2023, not 1983. Social norms and cultural expectations have changed. What might once have been acceptable or uncontroversial might not pass muster now.
Further, while in 2023 there appears to be a growing and increasingly active backlash to what is sometimes described as ‘woke’ corporate culture, the Christmas party theme (and conduct of the party itself) should not be an opportunity to give expression or support to that sentiment.
Those organising workplace Christmas parties should eschew any ‘anti-woke’ theme which could be seen as a tacit endorsement by the employer of discriminatory or harassing conduct.
4. Send a behaviour email
It has become a frequently mocked corporate cliché, but an email prior to the event reminding employees of the need to engage in appropriate behaviour and comply with workplace policies is an important step to manage risk.
The behaviour expectation email has become even more important with the introduction and implementation of the positive duty under the Sex Discrimination Act 1984 (Cth.) on employers to eliminate, as far as possible, sexual harassment in connection with work. This duty requires employers to take proactive steps to prevent sexual harassment — the behaviour email is an example of such a step.
From 12 December 2023, the Australian Human Rights Commission has new powers of investigation and enforcement in relation to the positive duty – just in time for many workplace Christmas events!
5. Ensure COVID-19 Safety
While there still should be an assessment of risks arising from COVID-19 (which, at the time of writing, seems to be making yet another unwelcome comeback), it is highly unlikely any Christmas functions will need to be cancelled due to those risks or significant steps taken to actively manage them. COVID-19 is largely under control and workplace life has, for the most part, reverted to normal.
That said those who are unwell should be asked not to attend, given that there will likely be a large number of staff in close proximity at the event and there is a risk of spreading any infection.
“Ideally, do not also announce any after parties or other functions, because this can create an impression that they are also official or authorised employer events.” – Michael Byrnes, Employment Partner at law firm Swaab
The role of the ‘responsible manager’
It’s essential that Christmas functions have at least one ‘responsible manager’, an employee who will ideally abstain from alcohol throughout the evening (or close to it) and identify, monitor and address issues such asRSA by the venue, alcohol consumption and behaviour of staff and any safety issues that might arise throughout the evening.
It’s fair to say the position of responsible manager, the requirements of which significantly impede the employee fully relaxing and enjoying the function, isn’t likely to be coveted. The position does, however, have an important role to play in managing the risks that can arise during the event.
A ‘responsible manager’ needs to be someone in a sufficiently senior position with the authority and capacity to credibly deal with potentially risky situations.
This nominated person should ensure that the RSA principles are observed and implemented, which might mean liaising with the venue contact during the party.
An announcement should be made by the responsible manager when the event has formally ended. Ideally, do not also announce any after parties or other functions, because this can create an impression that they are also official or endorsed by the employer.
They should then take steps to ensure attendees have adequate transport, or ready access to transport, to get home safely after the event.
Considerations after the event
Attendees should have already been made aware that workplace policies apply at the Christmas party, including policies relating to sexual harassment and bullying. Any complaints raised by employees relating to conduct at the event should be dealt with in accordance with the applicable policy.
For incidents that occur after the party officially concludes, an important threshold consideration might be whether the relevant incident(s) occurred at work, or whether it is a private matter outside the scope of the employment relationship. In making this assessment, a careful examination of the relevant circumstances might be required.
If the complaint necessitates an investigation, time could be of the essence. The investigator should seek to procure statements before memories fade and witnesses go away for the Christmas/New Year break. Ensure any necessary surveillance footage from the venue is obtained quickly to minimise the prospect of it being unavailable because it has been erased or lost.
To the degree possible and appropriate, keep an eye on social media postings to ensure that the reputations of the employer and employees alike are not damaged by injudicious posts about the function.
Media outlets are on the lookout for culturally insensitive costumes or performances or outrageous conduct at corporate Christmas parties for easy festive season content. While it’s rarely either practical or sensible to implement a photo or social media ban, employees should be reminded of the employer’s social media policy and directed to ensure they comply with it after the event.
What not to do at an office Christmas party
Even with the best of intentions, there are a few common mistakes employers make at Christmas functions that can get in the way of the safety and enjoyment of the event. Here are some actions that HR should avoid:
1. Going rogue
Watch out for the rogue executive (often the owner!) who climbs onto the stage, grabs the microphone and gives a message to attendees such as, “Drink up. Have a great time!”. Consistent messaging from management is imperative.
2. Perpetuating the victim-blaming message
Some workplace Christmas party articles in the past have suggested employees be asked to ‘dress modestly’ to avoid being sexually harassed. This is an anachronistic, counterproductive message that seeks to shift the blame for sexual harassment from perpetrators to victims – it’s entirely misconceived.
3. Forgetting it’s the workplace
Employees should be reminded that the event is not a licence to do things in the workplace that they would never otherwise do. A barrage of expletives directed at the boss, an unwelcome proposition to another staff member, or a punch-up with a staff member they dislike are all as unacceptable at the Christmas party as they are during any normal working day in the office or factory.
Managing the risk from an employer Christmas function doesn’t mean you have to be the workplace Grinch. Due diligence, effective communication before the function, enforcing appropriate conduct during the function and (if needed) quickly addressing any problems or complaints after the function can ensure a successful event without an ongoing employment litigation (or reputaional) hangover.
A version of this article was originally published on the Swaab website. It has been edited and republished with permission. Michael Byrnes is a Partner at employment law firm, Swaab.
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