Xmas party perils

If your employees have a Christmas party, make sure you don’t get the hangover. PETER VITALE lists the top six tips to avoid the litigeous dangers of the Christmas function.

By Peter Vitale

Take precautions before the work Christmas party – you shouldn’t be taking aspirin for anything other than your own headache.

The holiday season is generally one for celebration, rest and enjoyment. And all employers know that what happens at the work Christmas party, stays at the work Christmas party, right? 

Wrong! Christmas parties can be fertile grounds for litigation against employers who fail to take basic precautions. Now is the time to make sure your staff understand that there are limits on their revelry.

The risks

In most legal contexts, the work Christmas party is considered part of the work environment. As a result employers remain responsible for ensuring that they take appropriate steps to avoid employees suffering injury, embarrassment or perhaps even worse.

Examples provided by the Victorian Employers’ Chamber of Commerce and Industry of Christmas parties gone wrong include:

• An employee ended up in hospital for two weeks after suffering burns following Christmas party “festivities.” WorkSafe subsequently initiated successful prosecutions against four of the employees involved.
• Another employee in a separate incident was injured by a propeller after being pushed off a pontoon boat at a Christmas party. The employer was subsequently found liable for the injury caused.
• An offensive Christmas card left anonymously on an employee’s desk led to a successful claim for compensation.
• A successful sexual harassment claim was brought following inappropriate behaviour on the dance floor at a Christmas function.

Equal opportunity legislation in all states (and federally) makes employers liable for acts of employees that constitute sexual harassment. Sexual harassment can be constituted by anything from an off-colour joke, to an ill thought out Kris Kringle gift, to dance floor hi-jinks.

The Australian Human Rights and Equal Opportunity Commission has published a Code of Practice on sexual harassment, which includes the following definition:

“Sexual harassment is unwelcome sexual conduct which makes a person feel offended, humiliated and/or intimidated where that reaction is reasonable in the circumstances.

“Sexual harassment can take various forms. It can involve:

• Unwelcome touching, hugging or kissing.
• Staring or leering.
• Suggestive comments or jokes.
• Sexually explicit pictures, screen savers or posters.
• Unwanted invitations to go out on dates or requests for sex.
• Intrusive questions about an employee’s private life or body.
• Unnecessary familiarity.
• Insults or taunts based on your sex.
• Sexually explicit emails or SMS messages.
• Accessing sexually explicit internet sites.
• Behaviour which would also be an offence under the criminal law, such as physical assault, indecent exposure, sexual assault, stalking or obscene communications.

“Sexual harassment is not sexual interaction, flirtation, attraction or friendship which is invited, mutual, consensual or reciprocated.”

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Employers can only avoid liability for the acts of their employers if they ensure that they take “reasonable” steps to prevent the behaviour.

Another significant risk is that of physical injury, which might result in the employer being in breach of Occupational Health and Safety legislation or at common law for negligence.

It’s also important to understand that conduct at the Christmas party might constitute bullying behaviour, which in itself is a breach of OH&S law. It’s up to employers to take “reasonably practicable” measures to avoid risks to health and safety.

In the context of the work Christmas party, employers would be well advised to take the following measures:

• Reinforce with staff your Equal Opportunity and Occupational Health and Safety policies.
• Keep consumption of alcohol to reasonable and responsible levels; ensure you are in a position to stop service if necessary and supply enough low or non-alcoholic beverages.
• Make sure you provide a way for people to get home safely, whether that’s a bus, a taxi voucher or a limousine.
• Make sure you serve plenty of food and make sure it’s served according to applicable food safety standards.
• Make sure someone monitors hazards such as wet floors and loose electrical cables.
• Remind all staff by memo, email or notice board about the standards of behaviour expected and the disciplinary consequences of failing to meet those standards.