Tis the season to let your hair down... not your dignity

Employment Law update - 20 November 2019

Most of us know that punching our boss in the face or commenting on a colleague’s body is off limits, but you’d be shocked about what rules get ignored at Christmas parties.

A well-planned Christmas party can do a lot for a workplace. Staff get an opportunity to celebrate and reflect on the year gone by, and socialising outside of the office environment can lead to enhanced professional relationships between colleagues and boost morale for the year ahead. 

But despite these potential benefits, the HR departments of many organisations find themselves overrun in January with claims arising from that often-fateful evening — whether they involve workplace injuries, physical assaults, sexual harassment, inappropriate drunken behaviour or some combination.  

That being said, you don’t have to be a scrooge to get through this festive season. Addressing the considerations below will significantly improve the prospects of your organisation avoiding the worst of the Christmas party hangovers.

Be aware of where ‘the workplace’ starts and ends

If a function has been planned or paid for by the employer, there is every chance that any misconduct at the party will be sufficiently connected to the workplace and considered to have occurred in ‘the workplace.’ 

The Fair Work Commission recently upheld the termination of a BHP Coal worker who physically assaulted a supervisor and questioned the authenticity of female colleague’s breasts during a Christmas function in December last year. 

While the function was not outwardly BHP-related, in contrast to previous similar functions, BHP had contributed money for transportation and catering. The worker claimed he was not aware that it was a BHP arranged event. 

However, the Commission did not accept that attendees “would not have [noticed] the presence of 25kg of roast pork, gravy, bread rolls and deep fried nibbles provided at the event at no cost to attendees.”  

Further, the fact that the event involved some 60 employees meant that it was sufficiently work-related to be covered by BHP’s code of conduct. 

What this case (and others) indicates is that employers cannot assume ‘the workplace’ has a narrow definition. If employers are going to the effort and expense of hosting an event, it is imperative that the necessary safeguards are taken, and that management and HR are cognisant that employees and employers may be liable for actions outside of official workplace functions.

Plan ahead to avoid risks

The combination of alcohol and often fraught workplace dynamics means that organisers have to be aware of otherwise mundane risks, as not even the most well-resourced organisations are able to predict the eventualities of a Christmas party. 

Important questions to consider include:

  • Is the location and timing of the event appropriate and how are people going to safely make their way home?

  • Who will be accountable for the responsible service of alcohol and general safety at the event?  

  • Are there any assigned ‘party marshals’ who will be able to monitor the function for signs of trouble?

  • What is the action plan if something goes wrong?  

It can be tempting for management and HR to be fooled into a false sense of security where the employer has arranged for the external venue to take charge of the proceedings and the service of alcohol. However, it is important to remember that it is often the employer’s internal resources that are best positioned to be able to identify and manage risks as they arise. 

An employer can be found liable for staff misconduct if it does not take reasonable steps to prevent it from occurring. 

Train your staff

Appropriate workplace behaviour training covering harassment, bullying and discrimination can go a long way in assisting employees to understand their obligations to others and to their employer. 

Another practical measure to reinforce the expected standards of behaviour is to send a friendly (but firm) all-staff email prior to the function. 

If an employee’s sense of right and wrong is either lacking completely or clouded by the Christmas spirit(s) on the night, it is vital to ensure that your organisation has well-drafted policies addressing the expected standard of conduct, which should be communicated prior to the event.  

The policies should also make it clear that behaviour, including social media postings, which is likely to, or does, cause damage to the employer’s reputation may be subject to disciplinary action despite it occurring outside of the workplace.  

Be quick and decisive

Despite the most rigorous planning in the world, things can and do go wrong. It is vital for HR to be across the employer’s processes to ensure that names are not simply put on the naughty list without being properly investigated. The fallout from the incident can be minimised if you act quickly to investigate complaints of misconduct and take disciplinary action where necessary. 

With these considerations in mind, we hope that everyone can enjoy a happy and safe festive season which is remembered for the right reasons! 

Further information

All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.