It's that time of the season - Christmas parties are upon
us. Christmas parties provide staff and clients with a great
opportunity to interact in a relaxed social environment without the
constraints of work. Businesses often put a lot of time and expense
into these events to make it a memorable occasion.
But beware – the Christmas party can be a legal
Sexual harassment claims are common following end of year
celebrations and businesses are increasingly being held liable for
the actions of their employees if they cannot establish that they
have taken reasonable steps to prevent harassment occurring
irrespective of whether it occurs at the workplace or off site.
Reasonable steps mean pro-active, preventative measures. Lack of
awareness that the harassment was occurring is not in itself a
Employer's liability also extends to the serving of alcohol.
Just as restaurants and bars are not allowed to serve drunk people,
nor are employers. Occupational safety and health legislation
requires employers make provisions for the safety of their
employees, and this obligation doesn't stop at the work
The responsibility of the employer extends to ensuring that
staff return home safely, after having hosted a work function at
which large amounts of alcohol are served. This responsibility is
heightened at Christmas time where taxis are scarce, queues are
long, people are tired and frustrated and situations can boil over
Claims under the Sex Discrimination Act 1984 (Cth) or
the Equal Opportunity Act 1984 (WA) can be very costly for
a business. In addition, the emotional and financial toll of having
key employees embroiled in litigation is also a concern, not to
mention the possibility of unfavourable media attention.
So what is sexual harassment then? Sexual harassment is
unwelcome conduct of a sexual nature which would
reasonably be expected to offend or humiliate a person. Sexual
harassment can be a one-off event and is not limited to the actual
workplace – it can take place at work functions. One
employee getting a little too merry at the work Christmas party is
sufficient to get you into a lot of trouble. However, mutual,
invited or reciprocated sexual interaction, flirtation, attraction
or friendship between colleagues is not sexual harassment.
Some examples of sexual harassment include:
unwelcome touching, hugging or kissing;
staring or leering;
suggestive comments or jokes;
unwanted invitations to go out on dates or requests for
intrusive questions about an employee's private life or
unnecessary familiarity, such as deliberately brushing up
insults or taunts of a sexual nature; and
sexually explicit emails or SMS messages.
As an employer, what should you do?
ensure you have an appropriate policy that covers harassment,
including sexual harassment, and an effective complaints resolution
effectively communicate the policy to all employees in advance
of the party;
serve alcohol responsibly, such as serving full and half
strength beer, and provide plenty of water and soft drinks;
ensure adequate supply of food;
encourage appropriate conduct by management;
consider a general policy on alcohol consumption at work
make sure your clients are aware of your policy if they
consider arranging transport home or holding functions close to
public transport; and
take appropriate remedial action if sexual harassment does
Is there anything you should not do?
Do not assume you are immune from a complaint. Your staff will
not write off inappropriate or harassing behaviour as a
"one-off" due to excessive alcohol consumption or
"because it's Christmas". Businesses need to ensure
that all staff are made aware of what is expected of them and what
will and will not be tolerated.
A general awareness of anything in the nature of a complaint,
even if not reduced to writing, is sufficient for an employer to
Is it worth all the effort?
In an increasingly litigious work environment, some employers
may be tempted to cancel their celebratory event because they
believe it may not be worth the effort. It still is, but a few
simple precautions will ensure that you can approach the New Year
with a sense of hope, not trepidation.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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