Holiday Cheer Without The Claims: Employer Obligations And Holiday Parties

Tis the season for holiday parties.

Though after a summer plagued by HR scandals including affairs under Coldplay's Sky Full of Stars, the Diddy trial, and the NHL's Canadian World Junior Hockey Team sexual assault trial, employers are well advised to approach the season with prudent foresight.

While the holidays are a great time to build culture and teams in the workplace, they can also be a time of high risk and potential liability. Employers should consider taking appropriate measures to pre-emptively protect the workplace, evaluate risk during the event, and prepare for any post-event issues.

The Issue

Under Canadian provincial and federal workplace health and safety laws and human rights laws, employers are required to maintain a safe and healthy workplace free from bullying, discrimination and harassment. Holiday parties, even if held outside the physical walls of a company's or organization's offices, can be considered an extension of the “workplace”. Those walls have crumbled more and more since the COVID-19 pandemic and the prevalence of remote work. This means that employers' responsibilities towards employees may continue to apply off-site. Sprinkle some mistletoe and alcohol into the mix and employers may be assuming more risk than they realize.

Preventative Measures

While it sounds like holiday parties can become more naughty than nice, there are plenty of ways employers can help keep the potential for risk and liability wrapped up.

Prior to the Event

Before the holiday party, do an internal audit of your workplace policies with a particular focus on workplace violence, harassment and discrimination polices and a review of your complaint and investigation procedures outlined in your policies.

In addition, review or implement a social media policy well in advance of the event. Given the workplace extends beyond the four walls of an office, ensure that employees know that bullying, harassment, or discrimination of other employees or brand damaging content will not be tolerated online either and in some cases, social media posts can lead to disciplinary measures against the employee.

Another policy to consider or review is a policy on workplace romantic relationships. Ensure that employees know the employer's position on workplace relationships and whether there are any obligations to disclose such relationships. While romantic workplace relationships do not have to be forbidden, factors such as power dynamics between the individuals, whether the relationship causes workplace disruptions or leads to sexual harassment or violence may all need to be considered and a failure to disclose can lead to disciplinary action, if clearly outlined. As an employer, you do not want to find out about your employees' relationships through a jumbotron and a Coldplay serenade.

It is important to note that if a workplace issue does arise, the employer must follow its own policies and must apply them in a consistent manner. Not following the employer's own policy or applying policies inconsistently are common pitfall for employers. The employer may save time and costs today, but these factors can become the source of costly litigation when the employer becomes a Defendant down the line.

Employers should communicate with employees and staff in advance of the event reminding them of expectations around employee conduct, alcohol consumption, and the company's workplace policies as well as the complaint or reporting measures if an incident does take place.

Event Day

Have designated management staff oversee the event and be prepared to intervene early if employee conduct requires it. Speak with venue staff in advance regarding parameters around alcohol service and consider whether drink tickets are more appropriate.

Employers may also want to consider options such as arranging transportation to and from the venue, helping to organize overnight accommodation options or carpooling with designated drivers.

When selecting a venue, employers may also want to consider whether the space is an accessible space, whether alternate food and drink options are available for those with dietary or religious restrictions, and whether any other accommodations are necessary to create an inclusive and legally compliant event.

Post Event

If an incident does occur or is reported, it is important that employers act swiftly and in accordance with the employer's own policies to investigate the matter. One of the challenges faced by the NHL after the verdict was rendered in the world junior hockey team's trial, was its failure to investigate the allegations made against the team in a timely manner. Albeit the players were unionized and the Collective Agreement required certain steps of procedural fairness be taken, the principle of procedural fairness and resolving workplace safety complaints in a timely manner is consistent in the non-unionized context as well.

While employers cannot prevent workplace safety or discrimination issues, employers can protect themselves, their staff, and their brand, by taking the right steps to mitigate the risk of workplace safety matters and acting in accordance with their legal obligations right away.

The point is not to be The Grinch, but to avoid becoming The Defendant, or worse… the subject of a Netflix documentary.

If a workplace complaint does arise or you have any questions regarding navigating the season, the team at Pallett Valo is ready to assist you.

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.