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When Christmas parties go bad: How to avoid exposure

A prominent city billboard advertisement for corporate Christmas parties includes the slogan “Nothing HR can’t sort out in the morning”. The slogan is likely to strike a chord with many employers.

Unfortunately, it is not unusual for a night out to celebrate the end of the year to result in employee complaints and in some circumstances costly legal claims.

Happily, there are some relatively simple steps employers can take to minimise the risk of exposure.

First and foremost, employers need to be aware that whether a Christmas party is held at an employer’s premises or off-site, employers have an obligation to provide a safe environment and protect employees from unlawful conduct such as sexual harassment and bullying. Further, an employer will be liable for the actions of its employees who engage in unlawful conduct unless it can show that it took reasonable steps to prevent the contravention.

The first step is educating employees about what conduct is unacceptable in the workplace. Many employers will already have workplace policies that clearly set out the type of behaviour that is prohibited in the workplace. Generally this will include policies prohibiting behaviour such as discrimination, sexual harassment and bullying. For any organisations that do not have such policies, now is a good time to roll them out before Christmas functions begin. This will ensure that employees understand the type of conduct that is unacceptable not only in the office but at office related functions.

An employer’s workplace policies should clearly set out a definition of each type of prohibited behaviour and include specific examples of conduct that will not be tolerated. For example, while most people understand that sexual harassment includes unwelcome touching and lewd sexual comments, some may not understand that it can also extend to comments made at work functions including jokes of a sexual nature or unwelcome remarks about a person’s appearance or private life. It is irrelevant in these circumstances that the person making the comments did not intend to offend the other person.

As alcohol flows at Christmas functions it is not uncommon for employees to become more relaxed about their behaviour and make comments that they would not think of making in their normal office environment. To combat this, as Christmas approaches, employers should take the opportunity to remind employees of their obligations under workplace policies. This can generally be achieved by simply sending an email to all staff reminding them about relevant workplace policies and making it clear that those policies will continue to apply at all work Christmas functions.

In relation to alcohol, employers should ensure, as far as practicable that alcohol is served and consumed in a responsible manner. This might include assessing the type of alcohol served and ensuring that there is an adequate supply of low alcohol and non alcoholic drinks. Employers should monitor behaviour during the function and may also want to consider turning off the tab at a predetermined time of the evening. Nowadays, many employers also make transportation arrangements to ensure that employees arrive home safely after the Christmas party.

Unfortunately even employers who have appropriate workplace policies and inform employees about those policies are not immune from employee complaints. If a complaint is received in relation to conduct at a work or client Christmas function, it should be taken seriously and dealt with in the same way as any other complaint.

An employer is never going to be able to completely eradicate unlawful conduct in the workplace. However, by having appropriate workplace policies, training employees on those policies and having a procedure to deal with any complaints that arise, it can seek to minimise the risk of complaints and put itself in the best possible position to argue that it has taken reasonable steps to prevent the conduct.

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Michaela Moloney

Michaela Moloney

Michaela is special counsel at Middletons. She has practised in the area of workplace relations for ten years and has significant experience in all aspects of employment, industrial and discrimination law. Michaela is a member of the Employment and Industrial Law Committee of the workplace relations section of the Law Institute of Victoria and the Australian Human Resources Institute.

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