Christmas Parties are fun, so what is the issue?
It is the social function of the year that all employees look forward to. November and December marks the commencement of the “Work Christmas Party Season” – an opportunity for employers to reward employees at the end of a year for their hard work and welcome in the holiday season. Whilst enjoyable, employers need to be aware of the potential risks with work social functions, especially when alcohol is involved. Employers need to be aware that a work Christmas party, even if it is after hours and off-site, is still considered to be in the course of employment. This means that employers have a duty of care to provide a safe work environment for their employees and workplace policies still apply.
Can an employer really be held liable for Christmas Party behaviour?
Vicarious liability refers to the situation where the employer is held responsible for the actions of an employee. This liability arises provided the employee conducts acts in the course of their employment. Employer’s liability also extends to the responsible serving of alcohol and ensuring that staff return home safely after a work function at which alcohol is served.
Case Law Example
In the case of Lee v Smith & Ors , The Federal Magistrates Court held the Department of Defence (the employer in this situation) liable for the actions of an employee sexually assaulting a fellow employee after a private function. The circumstances of this case involved employees attending a private dinner party where an employee was intoxicated and was subsequently sexually assaulted by a fellow employee.
The Court held the employer to be liable as the sexual assault occurred in connection with the employment of the assaulter and arose out of a work situation. The Court found that there was a sufficient connection to the workplace and employment of the employees to hold the employer liable for the employee’s injuries.
Federal Magistrate Connolly made an order that the Department and the three company officers pay the employee damages in excess of $400,000 plus costs for the unlawful sexual harassment and assault. His Honour also ordered that the Federal Government re-employ Lee in a different government department.
Taking “All reasonable steps”
To protect employees, employers are required to take all reasonable steps to protect the health and safety of their workers. Below are some useful examples/tips on how employers can mitigate their risk from Christmas parties and similar workplace functions:
- Communication: Communicate behavioural expectations to all employees and remind them that all workplace policies apply during work-related functions. While encouraging a relaxed and enjoyable atmosphere, expect people to behave in ways that demonstrate respect for both themselves and other people.
- Demonstrate RSA: While it’s fine to be generous, limit the amount of alcohol you make freely available. Make sure you also serve food. People are entirely more likely to become intoxicated if drinking without eating. Ensure you stop serving alcohol to people who exhibit signs of being drunk and take steps to ensure inebriated team members get home safely.
- Role Model behaviour: Leaders of the workplace should role model the behaviours that are expected of their workers ensuring that their conduct is in keeping with the workplace policies at all times.
- Assign RSA Officers: While it’s every leader’s responsibility to look out for the team and intervene when inappropriate behaviour occurs, nominate a responsible person, or be the responsible person to monitor how people are interacting and act when behaviour is unacceptable and/or alcohol is being consumed to excess.
- Have an official End to the Work Function: Communicate an end time for the function, and verbalise it on the day. The end of the function will also usually mean a change in venue. Ensure that any additional socialising completed after that point is in the employees own time and at their own expense (and not seen to be sponsored, supported or arranged by the Company). Talk to your employees about their travel plans home following the function and/or where possible, arrange transport for employees.