It's that time of year. The 'Silly Season'. For many organisations, the official employer Christmas party is imminent. The events for this year, 2022, will be the first for three years in which the COVID-19 pandemic won't be a significant factor.

The starting point for office Christmas parties is that they are an extension of the workplace - employers need to carefully balance holding and facilitating a fun event with maintaining a safe, respectful environment for employees. While this will still need to include an assessment of risks arising from COVID-19 (which, at the time of writing, seems to be making something of an unwelcome comeback), the number of Christmas functions cancelled due to those risks, or converted into pale imitations conducted over video conferencing, will likely be far fewer than in 2020 and 2021.

Balancing the various risk factors can be an act worthy of the circus entertainers who are a fixture at some high-end corporate parties. A few sensible steps can, however, help manage the risks of 'Silly Season' events.

Prior to the party

Examine the venue: There are various factors to consider in determining the suitability of a proposed venue.

First is the location of the venue. Be wary of venues in inaccessible, isolated or potentially dangerous locations. There might be a price to be paid for the ambiance or novelty value such venues might lend to an event. Consider the additional risks associated with such venues and how employees will get home after the event.

Have a look at the layout of the venue. A venue with many nooks and crannies might be more difficult to effectively monitor than one with a wide, open space.

Also ask the venue for its policy on obtaining surveillance footage in case it's needed for an investigation after the function. (Hopefully it won't!)

Responsible service of alcohol: Check that the venue has adopted responsible service of alcohol (RSA) principles (the answer will almost certainly be yes) and how those principles will be implemented during the event. It's not simply moralising wowserism to observe that the source of many problems at workplace Christmas parties is excessive consumption of alcohol.

The theme: If you're having a themed Christmas party ensure the theme is not likely to cause offence, exclude people or unwittingly lead to inappropriate or discriminatory costumes or displays.

Start and finish times: Start and finish times for the party should be clearly established and maintained. Employees should be notified of them in advance of the event with the message reinforced by an announcement made at its conclusion.

Behaviour email: It's become a frequently mocked corporate cliche, but an email shortly prior to the event reminding employees of the need to engage in appropriate behaviour and comply with workplace policies is an important aid to manage risk. Feel free to inject some humour or levity into it, but not in a way that undermines the key message.

COVID-19 Safety: As noted above, COVID-19 safety was a significant factor in planning the workplace Christmas party in the past two years. While the spectre of COVID-19 is not as ominous as it was in 202 and 2021, there are still a few relevant enquiries employers should undertake. Does the proposed venue have a COVID-19 safety plan? What is the maximum number permitted in the venue and what is the basis for calculating that maximum?

Employers will also need to ensure they keep abreast of any changes in restrictions that might be imposed in the event of a spike in community infections. While there seems to be little political or community appetite for a reversion to restrictions, gatherings such as workplace Christmas parties will be one of the first activities likely to be affected if they are reinstated. Further, just because restrictions are not reimposed does not absolve employers of their obligation to manage COVID-19 risks, particularly at high density events (such as Christmas parties) where the prospect of transmission is increased. Employers may need to implement their own safety measures (ideally in conjunction with the venue).

While the party is on

Responsible manager: Christmas functions should have at least one 'responsible manager', an employee who will ideally abstain from alcohol throughout the evening (or close to it) and identify, monitor and address issues such as:

  • RSA by the venue;
  • alcohol consumption and behaviour of staff; and
  • any safety issues that might arise throughout the evening.

It's fair to say the position of 'responsible manager', the requirements of which significantly impede the employee fully relaxing and enjoying the function, isn't likely to be coveted. The position does, however, have an important role to play in managing the risks that can arise during the event. A 'responsible manager' shouldn't just be the office prude or jobsworth; it needs to be someone in a sufficiently senior position with the authority and capacity to credibly deal with potentially risky situations.

Service of alcohol: Ensure that the RSA principles are observed and implemented, which might mean the responsible manager needs to liaise with the venue contact during the party. Allowing employees to help themselves to alcoholic drinks without any oversight is asking for trouble. There should be plenty of water and non-alcoholic drinks available.

End announcement: An announcement should be made when the event has formally ended. Ideally, do not also announce any after parties or other functions, because this can create an impression that they are also official or authorised employer events.

Travel arrangements: Take steps to ensure attendees have transport, or ready access to transport, to get home safely after the event.

After the party

Complaints and conduct issues: Attendees should have already been made aware that workplace policies apply at the Christmas party, including policies relating to sexual harassment and bullying. Any complaints raised by employees relating to conduct at the event should be dealt with in accordance with the applicable policy.

For incidents that occur after the party officially concludes, an important threshold consideration might be whether the relevant incident(s) occurred at work, or whether it is a private matter outside the scope of the employment relationship. In making this assessment a careful examination of the relevant circumstances might be required.

If the complaint necessitates an investigation, time could be of the essence. The investigator should seek to procure statements before memories fade and witnesses go away for the Christmas/New Year break. Ensure any necessary surveillance footage from the venue is obtained quickly to minimise the prospect of it being unavailable because it has been erased or lost.

Monitor social media: To the degree possible and appropriate, keep an eye on social media postings to ensure that the reputations of the employer and employees alike are not damaged by injudicious posts about the function.

Media outlets are on the lookout for culturally insensitive costumes or performances or outrageous conduct at corporate Christmas parties for easy festive season content. While it's rarely either practical or sensible to implement a photo or social media ban, employees should be reminded of the employer's social media policy and directed to ensure they comply with it after the event.

What not to do

Go rogue: Watch out for the rogue executive (often the owner!) who climbs on to the stage, grabs the microphone and gives a message to attendees such as "Forget the PC, Nanny State stuff. Drink up. Cop a feel on the dance floor. Have a great time!!". There might be a time and place for the office iconoclast, but this isn't it. Consistent messaging from management is imperative.

The victim blaming message: Some workplace Christmas party articles in the (not too distant) past has suggested employees be asked to dress modestly to avoid being sexually harassed. This is an anachronistic, counterproductive message that seeks to shift the blame for sexual harassment from perpetrators to victims. With respect, it's entirely misconceived.

Forget it's the workplace: Employees should be reminded that the event is not a licence to do things in the workplace that they would never otherwise do. A barrage of expletives directed at the boss, an unwelcome proposition to another staff member they are keen on, or a punch up with a staff member they dislike are all as unacceptable at the Christmas party as they are during any normal working day in the office or factory.

Managing the risk from an employer Christmas function doesn't mean you have to be the workplace Grinch. Due diligence, effective communication before the function, enforcing appropriate conduct during the function, and (if needed) timely addressing of any problems or complaints after the function can ensure a successful event without an ongoing employment litigation (or reputational) hangover.

For further information please contact:

Michael Byrnes, Partner
Phone: +61 2 9233 5544
Email: mjb@swaab.com.au

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.