Canada: Naughty Or Nice? How A Holiday Party Might Leave Employers With An Expensive Lump Of Coal

Last Updated: December 6 2016
Article by Michael MacLellan

Hosting a holiday party is a great way to thank your employees for their hard work and to celebrate your company's successes in the last year.  However, if a holiday party gets out of control or is not reflective of your workforce's ethnic/cultural diversity it can create unforeseen liabilities, particularly where alcohol is involved.  It may come as a surprise to some Employers that you can be legally responsible for the conduct of your employees during or after a holiday party.

The not-so-recent amendments to the Occupational Health and Safety Act often referred to as Bill-168 formally made employers responsible for workplace violence and harassment.  Did you know that the concept of "workplace" extends beyond the four walls of your office, store, plant, or warehouse?  Employers are in fact responsible to maintain a safe and hazard-free environment when they host social events including the annual festive soiree. 

That means that under different theories of employment law, employers can be liable where their guests – whether or not they are employees – become unruly and engage in any violent or harassing conduct, including sexual harassment.

Beyond the obvious health and safety considerations, employers also need to be careful that the functions they host or sanction do not discriminate against individuals or groups of employees on the bases of their cultures, ethnic backgrounds, faiths, or disabilities.  Make sure your event is inclusive and accessible for all employees.

But wait, there's more...

Alcohol is the most common denominator in incidents that land employers in hot water after company parties.  In its 2006 decision of Childs v. Desormeaux, the Supreme Court of Canada weighed in and ruled that a social host of a party, unlike a commercial host such as a bar or restaurant, does not owe a duty of care to guests or third parties such that they would be required to prevent a guest from driving in an intoxicated state. The Court did identify three exceptions to that principle however, including instances where:

  1. the social host invites guests to participate in an inherent risky or dangerous activity that the host creates or controls;
  2. there is a relationship of supervision or control between the host and the guest; and,
  3. the host exercises a public function or engages in a commercial enterprise.

The Court's decision suggests that employers are likely to be held to a higher standard than social hosts when alcohol is served at company-sponsored events.  Employers are required to maintain a safe working environment for employees and are in more of a relationship of supervision or control with employees than mere social hosts might be.  In addition to protecting their guests, employers may even have a duty to protect third parties who may be injured by intoxicated employees.

Suggestions for Employers to Stay on the "Nice" List

Since it is so important for Employers to recognize their responsibility and control their exposures to risk, we at CCPartners have compiled a list of suggested "best practices" to assist your organization in planning and hosting a safe and inclusive holiday event:

  • Hold an alcohol-free event. This is the lowest-risk option for employers.
  • If you decide to provide alcohol at the event, have a cash bar, hire licensed bartenders, and speak to employees before the event about the risks of over-drinking.
  • Employees should also be reminded that this is a workplace function and they are expected to behave in a way that is not harassing, discriminatory, intimidating or otherwise inappropriate, and that your workplace violence and harassment policies apply to the Holiday Party.
  • Holding a morning (brunch) event rather than an evening event where alcohol is served may reduce the consumption of alcohol.
  • Provide non-alcoholic drinks as an option.
  • Avoid serving alcohol if your event includes physical activities, or serve the alcohol after the physical event is completed.
  • Have food available throughout the party, and accommodate diverse palates including for those with food allergies or sensitivities.
  • Provide alternative transportation for employees (i.e. taxi chits or Uber reimbursement). Encourage employees before the event to leave their vehicles at home and take advantage of the alternative transportation you are providing to get to and from the event.
  • Arrange for a nearby hotel to have rooms available for employees who are unable to get home.
  • Stop serving alcoholic beverages at least an hour before the party is over.
  • Be respectful of the different cultural and belief systems among your employees when planning your event.Make sure the date of your event, your menu and activities reflect your workforce's religious, cultural, and ethnic diversity.
  • Where your workforce is culturally diverse, consider creating a holiday planning committee of representative employees to plan your event, and plan your event around the many religious holidays being celebrated around this time.
  • Consider inviting your employees' family to accommodate those who may be unable to leave young children at home.
  • Allow employees to opt out of your holiday event without a consequence or negative connotation.
  • Make sure the venue is accessible to those attending your event.
  • Consider creating an electronic-free event, where use of cell phones and other mobile/recording devices are limited.This will help to ensure that your event and your employees don't end up on social media.

As employers start to plan their annual holiday events, now is the time to keep these tips top of mind in order to reduce the likelihood of human rights complaints, harassment allegations or claims for social host negligence if an employee ends up being seriously injured after leaving your event.   A well-planned, inclusive holiday event will not only foster a positive climate in your workplace but will go a long way in reducing the chances of your company ending up with a costly lump of litigation in its Xmas stocking!

Wishing you and your employees a safe and festive Holiday Season.

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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