The season of workplace social functions is upon us, for better and for worse. An office party that goes off the rails is not just the subject of water cooler gossip; it's a real source of employee complaints, workers compensation claims, damaged collegial relationships and even litigation. If the anticipation of your office party is keeping you (or your HR director) awake at night - and not with excitement - we hope that our top tips offer some practical ways to navigate the festive season without turning into Scrooge.
Employees often regard the end-of-year party as a type of private social function where normal workplace behaviour does not apply. The legal position could not be more different. Litigation may arise as a result of incidents at any work-related social function, including the end-of-year party. Claims may arise in the areas of workplace health and safety (WHS), sexual harassment, discrimination and bullying.
A key area of risk for work-related social functions is sexual harassment, especially where alcohol consumption gets out of control. Sexual harassment in the workplace encompasses any unwanted sexual conduct towards another person which could reasonably be anticipated to offend, humiliate or intimidate the other person. Office social functions are part of the workplace for the purposes of anti-discrimination laws. In some circumstances, employers' liability could even extend to incidents that happen when staff 'kick on' and keep socialising after the function. In order to avoid being made liable for the behaviour of a harassing employee, employers need to be able to show that they took all reasonable steps to prevent the harassment from occurring - and that will include steps to control the office party.
On the WHS front, it is well known that employers have a duty of care not to expose staff to hazards in the workplace and that they must take reasonably practicable steps to discharge this duty. It's important to note that the obligation continues to apply at work functions, whether or not they are held on the premises. This can lead, most obviously, to workers compensation claims. Again, excess alcohol consumption is a big risk factor for accidents, injuries and fights.
And from 1 January 2014, most employees in Australia will have access to the new anti-bullying jurisdiction of the Fair Work Commission. Employees will be able to lodge complaints where they have been bullied 'at work'. The draft anti-bulling benchbook published by the FWC in November 2013 contains the observation that "For the worker to be considered to be 'at work', the alleged bullying may not necessarily have to occur while the worker is actively engaged in work." While there is as yet no case law on this point, employers should assume that bullying complaints arising from work-related social functions may well be able to be lodged with the FWC after 1 January 2014.
Top tips to manage the risk
Employers can never entirely mitigate the risk of employee complaints or legal claims arising from social functions, but there are a number of practical steps which can be taken to manage risk, prevent incidents and defend claims.
- It is a good idea to schedule your refresher training (or even new training) on anti-harassment and anti-bullying to occur just before the festive season; this lessens the likelihood of an incident but also strengthens any legal defence. You will be in a position to show that employees have recently and clearly had the anti-harassment and other obligations explained to them;
- Set a definite start and end time to the function and state this on the invitation; it will be easier to draw the line between the work function and any incident at after-party socialising if start and end times are clearly stated;
- Inspect the venue and consider whether there are any obvious safety hazards (e.g. stair cases; balconies; slip hazards; venue's capacity to clean up glass breakage and spillage);
- If the function is happening outside the workplace, make it clear to the venue management that the bar tenders and waiters are not to serve alcohol to intoxicated party-goers, to staff under 18 years of age, or after the designated end time of the function. In most cases, this is asking no more than that the venue comply with the terms of its liquor licence.
- Ensure that there is plenty of substantial food and non-alcoholic beverages available
- Set a limit on the amount of alcohol that can be served 'for free' to staff, either in quantity or through a limit on the bar tab.
- Arrange transport for staff who have been drinking - e.g. by chartering buses to and from the venue and/or providing taxi vouchers; prevent any intoxicated staff members from driving.
- In the days before the function, remind employees that:
- a work function is not the same as a party in their own homes;
- they are certainly encouraged to have fun and enjoy themselves, but that they are not expected to drink to the point of drunkenness and that they will be held responsible any incidents that occur because of drunkenness (i.e. being drunk is not going to be regarded as an excuse).
- policies that regulate behaviour (for example, anti-harassment, anti-bullying and codes of conduct) still apply at social events;
- breaching policies will lead to the same consequences as if the behaviour occurred during office hours or in the office;
- if staff will be wearing their own party clothes, consider stating some boundaries to both men and women which are consistent with your general dress code (e.g. no transparent material);
- send around an email with these reminders and attaching the policies;
- encourage managers to personally remind their teams of standards of behaviour and to model good behaviour.
- Do not make the event compulsory for staff (e.g. some staff may not want to attend because of religious or cultural reasons);
- Ask designated senior or managerial staff not to drink, or to drink very little, so that they can help supervise the event and deal with any issues;
- If you organise an office Kris Kringle, make it clear that gifts should not be offensive, and especially should not contain sexual content or anything that could be racially offensive - even if it is presented as a joke;
- Be aware that if senior managers 'kick on' with groups of staff after the event, or continue buying them drinks when the tab is exhausted, this could give the impression that the work-related function is continuing and that incidents which happen hours later have a connection to the employment for the purpose of legal claims;
- If the worst happens and there is a complaint, ensure that any complaint, for instance of sexual harassment or bullying, is dealt with in exactly the same way under the policy as it would be if it had happened during work hours or in the office.
© DLA Piper
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