The end of the year is upon us once again and employees across the country may be drawing names for office gift exchanges and receiving invitations to staff holiday parties. But as the holiday cheer begins to flow, employers face a number of concerns that can be addressed with some extra planning.
When planning company events during the holidays, be inclusive and keep festivities non-denominational. The events should focus on an opportunity for employees to celebrate or get together. Human rights legislation in each of the provinces calls for employers to keep their workplaces free from religious discrimination. This could include planning activities that do not exclude certain employees based on their religion. While this does not necessarily require turning a "Christmas" tree into a "holiday" tree, activities and parties, from menu options to decorations, should aim to include everyone. The activities should be directed towards team building and celebration. Employees should also be allowed to not participate should they so choose. Make it clear that attendance is entirely voluntary and that non-participation will not be noted by the company in any way. Employees should also be reminded to be inclusive when planning their own office events with their co-workers.
When alcohol is served at company functions, employers owe a duty to employees to keep them safe from harm. Employers may also be liable for losses suffered by third parties such as passengers and other road users, in the event of a car accident caused by an impaired employee. Exceptionally, this is not true for the province of Quebec, where that province's legislative regime provides that any person who suffers bodily injury in an automobile accident will only be compensated by the Société de l'assurance automobile du Québec regardless of who is at fault. Generally, the courts have held that where an employer supplies alcohol to its employees, it must take affirmative steps to prevent the foreseeable risk that someone could be injured by impaired driving. The following are some suggestions that an employer can implement to minimize the risks associated with the hosting of company parties and which address the issue of drinking alcohol at social functions:
- Host events at a hotel or a restaurant where a commercial host will be primarily responsible for providing qualified staff to serve and monitor the consumption of alcohol. Holding a social function at a commercial establishment will not necessarily free an employer from its duty of care, but it will enhance control over the consumption of alcohol and enable it to at least share potential liability;
- Restrict and monitor the amount of alcohol consumed by each guest. For example, use a drink voucher system or hire a bartender rather than offering a self-serve bar, close the bar one hour before the planned end-time of the activity and make non-alcoholic refreshments freely available;
- Provide transportation or taxi vouchers to party guests for their trip home or to other locations if it is foreseeable that employees will continue the party at another location; and
- Ensure that you have host liability insurance coverage.
Whether it takes place during regular work hours or after, and whether it is held on site or off, the company's holiday party is a work-related activity and what goes on there is likely to have the same legal repercussions as any other workplace conduct. Events that occur at the workplace or in connection with the workplace are not private and can be subject to company policy and human rights legislation.
Therefore, an employee may be disciplined for his or her misconduct at a company social event. Second, the employer may face a human rights complaint from an employee who was the victim of harassment at a company social event. Human rights and other legislation which states that employees have a right to a "work environment" free of harassment, likely includes off-site company sponsored events. "Work environment" is open to a broad interpretation that could even include events not officially sponsored by the company (for example, a manager taking a group of employees out for drinks). Finally, a victim of harassment may claim that he or she has been constructively dismissed because the incident of harassment has made the workplace too intolerable for him or her to remain there.
Occasionally, office party conduct may be so egregious that a single incident would warrant an employee's dismissal or would amount to constructive dismissal of the victim. More commonly, holiday party conduct is one incident in a pattern of ongoing harassment. Employers have a duty to address harassment in the workplace and must not be dismissive of an incident of harassment that occurs at a work-related social event. Additionally, injuries occurring at company-organized social events could be subject to provincial occupational health and workplace safety insurance regimes. This is especially true of injuries occurring at an event held at the workplace or during regular working hours.
Employers can reduce the risk of liability related to employee conduct at social events by treating the event as continuous with the workplace. To that end, we offer these recommendations:
- Be aware of employees' conduct at social events and follow up on complaints of harassment;
- Have supervisors or managers assigned to monitor the festivities during the event;
- Place controls on alcohol consumption;
- Be prepared to ask for assistance in the event that an employee becomes uncooperative (e.g., an inebriated employee insisting on driving his/her own car home);
- Send a clear message that the holiday party is a work-related activity. Implementing and circulating a policy for social events will communicate to employees that the event is continuous with their workplace; and
- Ensure that your policy on harassment in the workplace states that the policy applies during social events.
With these thoughts in mind, we wish you happy holidays and safe celebrations this year.
About Ogilvy Renault
Ogilvy Renault LLP is a full-service law firm with close to 450 lawyers and patent and trade-mark agents practicing in the areas of business, litigation, intellectual property, and employment and labour. Ogilvy Renault has offices in Montréal, Ottawa, Québec, Toronto, and London (England), and serves some of the largest and most successful corporations in Canada and in more than 120 countries worldwide. Find out more at www.ogilvyrenault.com.
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