Be merry, it’s mandatory: Office Christmas parties and employer duty of care

At staff events, the rules might be a little less clear than in the office. But one thing is the same: employers owe a duty of care.

In recent years, a lot has been made of the way in which staff events can go wrong. Comparatively little attention, though, has been given to the legal obligations owed between employers and their employees.

“Every year, they go wrong,” said Michael Byrnes, partner of employment and workplace health and safety at Swaab.

“Even with all the warnings and the best intentions in the world, human nature is what it is, and people use [these events] as an opportunity to cut loose and to engage in conduct which is contrary to the expectations made clear to them.”

Let us consider what kind of duty an employer is under to protect their employees when the lines get a little blurred over the silly season.

Duty of care

“It is the workplace. The employer has the same obligations at the Christmas party as they do in the ordinary workplace,” said Mr Byrnes. “It’s just that employers don’t have the same degree of control over events.”

For all the differences in the way we behave and interact with one another after work hours, it pays to consider a company event as an extension of the workplace. Where the duty of care is concerned, it matters little that the employer tends to have less control over the conduct of employees at Christmas events.

There are environmental stressors at Christmas parties, like alcohol and layout challenges, that make employer supervision even more important than usual.

Setting the tone

The dreaded behavioural email – the formal reminder of what is expected from employees at a staff function – is more than a way of limiting employer liability. It can serve as a refresher on appropriate conduct. Getting it right is crucial.

A behavioural email should outline the obligations and duties owed both by the employer and employees. Moreover, it should make clear the possible consequences of falling short.

As noted in an article by Mr Byrnes, recent legislative changes have made behavioural email even more important. Not only are employers now under a positive duty to eliminate sexual harassment in connection with work, but the Australian Human Rights Commission will, as of December, have new powers of investigation and enforcement in relation to the new duty.

When asked what to avoid putting in the email, Mr Byrnes said clarity is key: “Don’t give any mixed messages. [Avoid] sending an email which says: ‘Look, we have to send this message but don’t take it too seriously,’ either directly or through subtext.”

If humour is necessary, it’s crucial that it does not undermine the seriousness of the email. As noted by Mr Byrnes, the text could very well be tendered in court and may need to form part of an employer’s defence in relation to objectionable employee conduct. A sneering or ironic tone could substantially undercut the employer’s case.

Mr Byrnes also emphasised that behavioural emails should avoid victim blaming. An employer should focus on discouraging wrongdoers rather than instructing potential victims as to how to best protect themselves.

Intoxication and getting home

Ideally, Mr Byrnes said, alcohol consumption will be regulated through applied Responsible Service of Alcohol (RSA) licensing. Self-service of alcohol can raise further complications for employers.

That said, an employer will not be in the clear merely because the party took place in a licensed, staffed venue. Regardless of how an employee becomes intoxicated, it is incumbent on an employer to ensure that they get home safely.

“There’s not necessarily an obligation that every employee needs to be provided with cab charges or the like. Though, in some ways, that is the prudent thing to do. But what is important is when you’ve got an employee who is vulnerable for some reason, perhaps they’re inebriated or affected by other substances, that they’re particularly looked after,” explained Mr Byrnes.

The precise extent of the duty owed by an employer is contextual. If, for example, the venue is relatively remote or located near dangerous areas, such as a body of water, the bar for responsible employer conduct will likely be higher.

Handling a report

Crucially, if something does go wrong, employers must handle incident reports in much the same way as they would at ordinary work. The reporting mechanism should be as accessible and painless as possible.

“A complaint should be handled pursuant to existing policy – whether it be sexual harassment policy, bullying policy, whatever it is – it should be investigated in the same way as at work,” said Mr Byrnes.

“There might be some contextual aspects to it, which put a different complexion on events than might be the case if they occurred in the ordinary course [of work], but the same reporting mechanisms should be applied, and an investigation should be instigated as usual.”