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‘Tis the season to be jolly: protecting your business in relation to work Christmas parties

With the 2014 Christmas period fast approaching, employers need to consider taking measures to protect themselves and employees from inappropriate conduct at work Christmas parties and other social functions.  Whilst employer sponsored Christmas functions can be a great way of improving employee morale and celebrating a successful year, the nature of an alcohol fuelled festive environment can lead to unacceptable behaviour.

As a starting point, work Christmas parties should be seen as an extension of the work environment and employees should be made aware that the same standards of behaviour that apply in the workplace apply to their conduct at the function.  Specifically, this includes the continued application of workplace policies, particularly those relating to workplace harassment, sexual harassment and workplace health and safety.

In addition, employers should be aware that injuries that occur at a Christmas party may also be the basis of a workers compensation claim.

A Recent Case Example

In a recent New South Wales Industrial Relations Court decision, an employee had consumed a considerable volume of alcohol before attending a workplace function with a number of his work colleagues, some of whom were also social friends of the employee.

During the course of the function, which took place at a local hotel, the employee allegedly touched the breasts of five separate women.  The employee admitted to the conduct although he did initially assert that he had consent from those women to touch their breasts.  The women who were interviewed denied having given the employee consent.

During the hearing it was also alleged that the employee had divulged confidential information to one of the women to the effect that she had not been successful in her application for a promotion.

Following the groping incident, which was witnessed by a number of the employee’s colleagues, one of the witnesses to the conduct was having a conversation with one of the Department’s managers, together with two of the women who had been groped by the employee.  During that conversation, the witness mentioned to the manager that the employee had touched the two women’s breasts and that the conduct was ‘not on’. The manager’s reaction was to say ‘That’s okWe’re gay’. The manager then immediately reached out and touched each of the women on the breasts.  Relevantly, the manager was the direct manager of one of the women.

In what was an extremely drawn out investigation taking more than 12 months from the date of the allegations, the Department found that the employee was guilty of misconduct.  He was directed to resign and when his resignation was not forthcoming, he was then dismissed by the Department.  It is important to note that the employee was not suspended for this period and continued to perform his duties for the entire period of the investigation.

The manager’s conduct was also investigated, and whilst he denied the allegations against him, the evidence of the women was accepted and his discipline consisted of a demotion.

In her decision, Commissioner Tabbaa said that although the two employees’ conduct was not predatory, it was ‘deplorable, unsolicited and had the potential to undermine the integrity and reputation of the Department’.

It appears from the facts that only one of the women subjected to the conduct considered the conduct offensive or humiliating.  The woman who made the complaint was embarrassed by the conduct of the employee, but as the manager was her direct manager, she saw his conduct as much more serious.

The Commissioner noted that the employee was deeply remorseful and ashamed of his conduct and provided three personal references say that the conduct at the function had been out of character for him.  The Commissioner also noted he had a good work history.  Further, the employee had conceded the inappropriate nature of his conduct at the first opportunity that he had.  This was contrary to the actions of the manager who had denied the allegations.

Even though the allegations were proven against both employees, the disciplinary action taken against them differed, with the manager only being demoted.  On this point, the Commissioner stated:

“… I find, having made the above comparisons, that the penalty of dismissal meted out to the [employee] was harsh when assessed against the penalty meted out to [the manager]. I have no doubt that the [employee] has been humiliated and embarrassed by his actions at that function and will live with the consequences for a long time to come.”

The Commissioner subsequently reinstated the employee, but imposed other significant disciplinary measures on him, including a reduction in pay.

Key tips to minimise exposure

The following are our top 5 tips to minimise your exposure from claims by employees arising out of the Christmas party

1. Advertise the function/party as a work function

An employee will find it difficult to argue that your workplace standards do not apply where the occasion was clearly designated as a work function.

2. Advise your employees as to their obligations

Whilst you do not want to discourage your employees from attending your workplace function by threatening disciplinary action before the party even gets started, retraining on applicable workplace policies, reminders about responsible consumption of alcohol and adherence to company policies and procedures can be effective ways of reminding your employees that inappropriate behaviour will not tolerated.  Employees should be advised that the same standard of behaviour is expected at the Christmas party as that which occurs in the office and action will be taken against any employee who breaches the required standards of behaviour.

3. Serve Non Alcoholic Drinks, Low Alcohol Drinks and Food

Giving your employees the choice to drink and/or consume alcohol responsibly will lessen your responsibility as an employer for any alcohol fuelled incidents. Ensuring there is plenty of food available will also reduce the state of inebriation of your party goers.

4. Set a ‘cut off’ time and/or a closing time

Letting your employees consume alcohol under the business banner into the early hours of the morning is a recipe for a harassment claim, sexual harassment claim or other discrimination or misconduct claim.  Monitoring your employees’ consumption of alcohol and arranging and advertising a conclusion to your work function are good ways of ensuring that your employees do not get themselves or the business in trouble.  You should clearly make it known when the party is at an end and be clear those employees who choose to kick on to an after party after the work function ends do so at their own risk and any conduct after the cut-off time is not sanctioned or approved by the employer.

5. Arrange for a safe method of transport home

Arranging for buses, taxis and other rides is a great way of reducing the chance of issues arising at the conclusion of the festivities. Not only does this allow everyone to have a good time without having to ‘make their own way home’, it also allows you to account for your staff at that time of the night and ensure their safety.

Implications for employers

Aitken Legal commonly receives enquiries in the wash-up from work Christmas functions and, most commonly, they relate to complaints of sexual harassment.  Employers are strongly encouraged to undertake retraining with their employees on sexual harassment and other policies prior to the event and ensure that all staff are aware that inappropriate behaviour will not be accepted.

At the very least, an e-mail or other communication to all staff prior to event covering off the issues outlined in our Top 5 tips should assist in reducing your exposure to claims arising from the event.

Remember, where an incident does occur and you are considering termination of employment as a disciplinary measure for participating employees, Aitken Legal strongly recommends you seek legal advice before taking steps to terminate those involved parties.

Chris Campbell, Partner

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