Getting legal advice

How to avoid a Christmas party legal hangover

Christmas parties provide a great opportunity for team-building and rewarding staff, but they can also provide a forum for inappropriate workplace behaviour and accidents.

Remember, the legal rights and obligations of both employers and employees continue to apply during work Christmas parties, just as they do during normal working hours.

You have an employer duty of care to employees. You must take reasonable steps to identify and reduce potential risks, including those related to workplace health and safety, bullying, sexual harassment and discrimination.

From a WHS perspective, employers should undertake a risk assessment in order to identify the hazards, assess the risks and then implement controls to reduce the risks as much as possible.

Employers will also be held vicariously liable for the conduct of employees unless the employer can demonstrate they have taken all reasonable steps to prevent the conduct from occurring.

What are the legal risks of a workplace Christmas party?

Common workplace issues that occur at work Christmas parties include:

  • unprofessional or unacceptable behaviour

  • bullying or harassment

  • sexual harassment (which may include unwelcome touching, hugging or kissing, unwanted sexual advances or suggestive comments or jokes)

  • discrimination

  • breaches of drug and alcohol policies

  • breaches of confidentiality (disclosing sensitive information)

  • workplace health and safety incidents

  • accidents or injuries (leading to workers’ compensation claims)

  • issues with social media.

Employer duty of care: tips to reduce risk

To avoid waking up to a case of employer negligence, follow these seven steps:

1. Have appropriate, up-to-date workplace policies and procedures or codes of conduct in place covering topics such as bullying and harassment, sexual harassment, discrimination, social media, confidentiality, work health and safety, and drug and alcohol use. You should also have policies in place dealing with complaints reporting mechanisms.

2. Prior to the event, remind employees of the standards of behaviour expected of them, and company policies continue to apply during the Christmas party. Remind employees of the consequences of inappropriate behaviour. You should also provide access to the policies (e.g. circulate copies or links of the policies).

3. Undertake a WHS risk assessment of the venue to identify potential safety hazards, and ensure these are monitored throughout the event (or make potential risk areas out of bounds).

4. Establish clearly defined start and finish times for the event, and make it clear that activities which continue afterwards are not endorsed by the employer. This helps to reduce the risk of being found liable for conduct that occurs after the function.

5. Appoint a senior employee to stay sober and supervise the function. This includes providing employees with a contact point should any issues arise, monitoring employee behaviour, dealing with issues (which might include sending people home or closing the bar), and organising appropriate transport arrangements at the end of the night.

6. Where alcohol is involved, comply with responsible service of alcohol laws and provide sufficient food and non-alcoholic drinks. Keep consumption of alcohol to reasonable levels and ensure no employee feels obliged to drink.

7. Deal with all complaints promptly, professionally and confidentially in accordance with applicable policies.

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Work Christmas party planning checklist

  • Use a stepladder, not a swivel chair to put up decorations.

  • Don't hang the tinsel on computers or other sources of heat.

  • Don't decorate emergency exit signs.

  • Switch off tree lights before going home.

  • Ensure Christmas trees are secure and won't be knocked over by people passing by or pulling cables.

  • Keep party food that spoils in a fridge before the party.

  • Use paper cups, not glasses.

  • Move computers out of range of possible spillages.

  • Avoid indoor fireworks, barbeques, candles and the like.

  • Send an email, or pin to the notice board, a reminder to staff of EEO and WHS policies and behavioural responsibilities.

  • Remind staff that Secret Santa gifts should not be offensive or sexual in nature.

  • Designate some managers to stay sober in order to monitor the party to ensure any issues are promptly and properly addressed.

  • Inspect the venue for possible hazards like slips and trips and make potential risk areas out of bounds.

  • Suggest a dress code for the party that keeps things professional.

  • Alcohol, if served, should be done responsibly. A voucher system may be a useful way to limit alcohol consumption.

  • Have a bartender dispense the alcoholic drinks. Instruct them as to when to limit alcoholic service.

  • Sufficient food should be served with alcohol.

  • Have plenty of low alcohol and non-alcoholic beverages available.

  • Buffets present a particularly high risk of food poisoning from foods such as cooked meats, eggs, mayonnaise and cooked rice. It is recommended that food should not be left out at room temperature for more than 90 minutes and stored below 5°C.

  • Don’t hang mistletoe. An innocent kiss may turn into a festive fling, which could have repercussions in the workplace.

  • Make mini-bus or Cabcharge vouchers available to your staff, particularly those who have been drinking.

  • If an occasion occurs where a staff member has had too much to drink or too late a night, and who needs to drive or operate machinery the next day, give them either time-off or alternative work until they are fit to resume their normal tasks.

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