Managing the risk from a Christmas function doesn't mean you have to be the workplace Scrooge.
It's that time of year. Houses festooned in garish Christmas lights. Re-runs of "Love Actually" on the TV. Paul McCartney's "Wonderful Christmastime" and Mariah Carey's "All I Want for Christmas Is You" on high rotation on the radio.
That also means that many workplaces are about to hold their Christmas parties.
As with almost anything in life that can be enjoyable, there are potential downsides which employers must be aware of, as courts and tribunals have made it clear that an official employer Christmas party will constitute a work function, and that the employer may be liable for events that occur during it.
Employers can, however, walk the line between an uncomfortably repressed tea party and a bacchanalia by taking a few steps before, during and after their workplace Christmas parties.
Before the party
Undertake due diligence on the venue: Ensure that the venue is fit for purpose, is not going to constitute a work health and safety hazard (particularly having regard to the probability that staff will have consumed alcohol) and that they will co-operate with you in ensuring a low risk (but enjoyable) event.
Consider additional risks associated with venues that are in inaccessible or dangerous locations or harbour cruises (which, for some reason, always seem to be in a class of their own). Venues that are out of the way or in isolated areas should be avoided.
Consider asking the venue what its policy on obtaining surveillance footage is, in case you need it for an investigation after the function.
Responsible service of alcohol: Ensure that the venue has adopted responsible service of alcohol (RSA) and inquire how it will implement it during the evening.
Be careful with the theme: Many employers have themed Christmas parties. Ensure the theme is appropriate and not likely to cause offence or be exclusionary.
Establish clear start and finish times: Because your party is a work function, you must draw a clear line on when the official festivities start and finish, and notify staff of those times in advance. Which brings us to...
The "good behaviour" email: You know the one. We've all seen variations on the theme. It's the workplace equivalent of safety demonstrations on planes; they may have become trite and are often mocked but are nevertheless necessary.
Ideally, you want your employees to read this, so you can make it more engaging by avoiding a didactic tone, and injecting some humour into it, but make sure you don't trivialise or obscure the importance of the underlying messages.
Send an email to staff about the Christmas function stating:
- that workplace policies will continue to apply during the function (in particular, any drug and alcohol, sexual harassment and bullying policies);
- the start and finish time of the function;
- the importance of not engaging in conduct that breaches policies or brings themselves or the employer into disrepute (and the potential consequences if they do); and
- that employees should be judicious about what they post to social media in respect of the event, in particular avoiding posts that could humiliate or bully colleagues or potentially generate adverse publicity for the employer and/or staff.
During the party
Responsible manager: In the same way schools have prefects, Christmas functions should have at least one "responsible manager", who will remain stone cold sober throughout the evening and identify, monitor and address:
- RSA by the venue;
- consumption of alcohol by staff;
- general conduct of staff; and
- any safety issues that might arise throughout the evening.
While there is little doubt that the responsible manager will have drawn the short straw for the night, they discharge an important function in managing the risks that can arise during it. A "responsible manager" should be someone in a senior position with the authority and capacity to credibly deal with them.
Service of alcohol: Ensure that the RSA principles are observed and implemented, which might mean having the responsible manager liaise with the venue contact during the party. Allowing employees to take alcoholic drinks for themselves in a completely unfettered way is a recipe for problems. Check that there is plenty of water and non-alcoholic drinks available.
Notify staff when the event has ended: An announcement should be made that the event has formally ended. Ideally, do not announce any after-parties or other events, because this can create an impression that they are held under the auspices of the employer, and thus are work functions.
Travel arrangements: To the extent practicable, ensure that attendees have arrangements to get home safely after the event.
After the party
Complaints and conduct issues: Attendees should already have been placed on notice that workplace policies continue to apply at the Christmas party, including policies relating to sexual harassment and bullying. Any complaints or issues arising from the function should be dealt with in accordance with the applicable policy.
For incidents that occur after the party officially concludes, there might be a live question as to whether the relevant incident(s) occurred at work, or whether it is a private matter outside the purview of workplace policies and the employment relationship. This will depend upon a careful examination of the circumstances of each case.
If an investigation is required, try to obtain evidence before memories fade and employees start going away for the Christmas/New Year break. This includes getting any necessary surveillance footage from the venue before it is erased.
Monitor social media: To the extent possible and appropriate, keep an eye on social media postings to ensure that the employer and attendees at the party are not being brought into disrepute by injudicious or indiscreet social media postings of the function.
Media outlets looking for easy content would consider them manna from heaven, especially if they involve particularly outrageous behaviour or culturally insensitive costumes or performances. While a photo or social media ban of such events is almost certainly impractical and counterproductive, nevertheless employees should be urged to be judicious in their posting and comply with the employer's social media policy.
What not to do
Go old school: Watch out for the maverick manager who wants to grab a microphone and encourage attendees to drink as much as possible and turn your party into an episode of "The Benny Hill Show". Employers should get all senior management to be consistent on messaging.
The victim blaming message: Some guides suggest that employees be told to dress modestly to avoid being sexually harassed. This is an anachronistic, unhelpful message that seeks to shift the blame for sexual harassment from perpetrators to victims, and won't play well in court if tested. That said, however, it might be appropriate to remind employees to skip the mankini.
Forget it's the workplace: Employees should be reminded that a Christmas party is not a licence to do things in the workplace that they would never otherwise do. A profanity-laden tirade directed at the boss, sleazy proposition to another staff member they fancy, or wanting to stage their own version of the Rumble in the Jungle with a staff member they despise are all as unacceptable at the Christmas party as they are in the office.
Managing the risk from a Christmas function doesn't mean you have to be the workplace Scrooge, muttering "Bah, humbug!" at anything that might generate fun and good cheer. Some due diligence and clear communication before the function, enforcing parameters during the function, and (if needed) prompt addressing of issues after the function can ensure a good time can be had by all without a nasty employment litigation hangover.
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.