Christmas and work functions
Christmas is celebrated in many companies with the traditional office Christmas party. Employers should communicate their expectations and policies on appropriate behaviour with all employees to ensure the safety and wellbeing of all.
Employers need to understand the risk areas and factor these in when planning any event. By understanding the liability, employers can be aware and take steps to reduce the risk of a potential claim.
Christmas festivities and other work functions can be a hotspot for sexual harassment, and employers need to be aware of the risks and liability associated with said claims.
To reduce the risk, employers should understand what sexual harassment is and plan accordingly. An employer may be held vicariously liable for any sexual harassment their employees commit or are subjected to.
Claims can be made under state or federal legislation, with both jurisdictions having three criteria of what constitutes sexual harassment.
The two common elements must be:
- unwelcome conduct
- of a sexual nature.
Under the federal legislation, the third element requires that a reasonable person would regard the behaviour as offensive, humiliating or intimidating.
Under state legislation, the third element requires that the person at whom the behaviour is directed has reasonable grounds for believing rejection of the behaviour would disadvantage their employment prospects or is in any way connected with their employment.
If a complaint lodged with the Equal Opportunity Commission is successful, the employer can be ordered to pay up to $40,000 under state legislation and an unlimited amount under federal legislation.
Such a claim can prove to be extremely expensive, so employers should take steps to reduce their liability or risk of a claim, including ensuring the employees are made aware of what behaviour is acceptable at these functions. This can be done by circulating a memorandum reminding employees of their obligations regarding sexual harassment.
The memo should only be used to reinforce the organisation’s policy and is not designed to replace the policy, complaints procedure or equal opportunity training. It is also recommended that employees are provided with a copy of the organisation’s sexual harassment policy.
While Christmas is celebrated by many, employers should be conscious that not everyone’s religious beliefs provide for participation in the festivities.
Those employees who do not celebrate Christmas for religious or cultural reasons should not be discriminated against whether directly or indirectly.
‘Discrimination occurs where a person distinguishes between individuals or groups of individuals so as to treat some less favourably than others. Discrimination is unlawful where the less favourable treatment is on, or partially on, prescribed grounds.’
Equal Opportunity legislation and the Fair Work Act 2009 outline a range of grounds on which discrimination is considered unlawful and for which employers and employees may be found to be accessory to, vicariously or personally liable and be subject to substantial fines.
In addition to fines, where discrimination is found to have occurred, costs may be afforded to the victim. Some of the grounds on which discrimination is unlawful include age, sex, race, religion, political conviction, physical or mental impairment, nationality, family responsibilities, pregnancy, potential pregnancy and sexual orientation (this list is not exhaustive).
Direct discrimination is the less favourable treatment of an individual or groups of individuals because of a particular prescribed ground in the law. This may be based on fact or a stereotypical assumption about that individual or group. An example might include deciding not to promote an employee because you do not consider them to be a team player as they never attend work functions. This may be due to their family commitments preventing them from attending events out of work hours.
Indirect discrimination occurs where a common rule is applied which appears to be fair and equitable for everyone but has a much greater impact on individuals or a group of individuals so as to treat them less favourably on a prescribed ground. An example of indirect discrimination might include closing the office for the function however only those who attend the function can leave work early. Those who do not attend must stay and work through, regardless of why they are not attending the work function. This rule may indirectly discriminate against those who can’t attend functions for religious reasons.
Employers should take steps to ensure employees are not discriminated against for not attending these functions. These functions should be voluntary rather than compulsory, and while employers can encourage employees to attend, they should not be punished or isolated for not attending. Employers should communicate this to staff and take other reasonable steps such as circulating the equal opportunity policy, having an effective complaints procedure and providing equal opportunity training for employees to reduce their liability.
Bullying is a growing issue in the workplace that has been subject to increased scrutiny by various bodies in recent times. Safe Work Australia have produced a Guide on Preventing and Responding to Workplace Bullying and workers are now able to lodge bullying claims to the Fair Work Commission. This means that it is more important than ever that employers take their duty of care obligations seriously, even during the silly season.
The guide defines workplace bullying as “repeated unreasonable behaviour towards a worker or group of workers, that constitutes a risk to their health or safety”.
The key terms of this definition are below:
- Repeated behaviour refers to the “persistent nature of the behaviour and involve a range of behaviours over time”.
- Unreasonable behaviour is defined as “behaviour that a reasonable person, having regard to the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening”.
Examples of such behaviour that may be exhibited at work functions could include (but are not limited to):
- Isolating or deliberately excluding an individual from conversation
- Organising a function at a time when only certain individuals will be able to attend
- Using intimidating language or actions to pressure a person to drink alcohol
- Making fun of another person for refusing to drink alcohol. This may also lend itself to discrimination, having regard to religious or cultural sensitivities.
- Abusive, insulting or offensive language or comments
- Gossiping or spreading rumours
- Physical assault
Work functions have the potential to be a hot spot for bullying activity, particularly when alcohol is consumed. Therefore, the management of these events, before, during and after, is critical.
It is important that organisations have a workplace bullying policy in place that contains a process for lodging and dealing with complaints. Employers and HR managers should also take steps to ensure that workers are trained on the policy, which may include providing refresher training or reminders to workers regarding appropriate behaviour prior to work-related events.
If any issues do arise out of a work function, they should be dealt with promptly and accurately, in accordance with the organisation’s policy.
Employers have an obligation to maintain a safe working environment for their employees. This responsibility requires employers to take reasonable steps to reduce the risk of employee exposure to workplace bullying and extends to work functions, such as the staff Christmas party. This is applicable even when the function is held off-site.
Duty of care/workers’ compensation
Employers have a certain duty of care to the attendees of a work-related function. There is always the potential for an incident arising from the function to become compensable for the purposes of workers compensation.
By taking proactive steps such as the following, employers can reduce the risk of incident and potential workers’ compensation and common law action.
Before the function
- Don’t force employees to attend
- Consider holding the function off the premises
- Clarify the expected standards of behaviour prior to the event
- Remind staff of any relevant policies and the fact they still apply at work functions
- Avoid the ‘secret santa’ gift system that could result in inappropriate gifts being given or if engaging in such an activity remind staff to exchange appropriate gifts
- Set a start and finish time for the function and ensure that it is adhered to
- Remind employees that if they choose to consume alcohol, they do so responsibly and do not drink and drive
- Decide at what point to stop serving alcohol, and
- Make sure that adequate supervision is available.
At the function
- Provide food and non-alcoholic beverages
- Brief catering staff on company expectations relating to the serving of alcohol
- Impose reasonable limits on the supply of alcohol, ensuring employees under the age of 18 are not supplied with any alcohol
- Provide supervision to prevent excessive drinking and ensure guidelines are complied with
- Discourage activities that may lead to inappropriate behaviour, and
- Make arrangements for employees to get home safely, for example taxi vouchers, skipper, mini bus or public transport.
Employees should be encouraged to have a good time at these events, however employers should plan ahead and be proactive in advising employees of their responsibilities and take steps to reduce the liability. By following a few simple steps, everyone can enjoy the celebrations without an aftermath that the employer would rather forget.
Why implement a drug and alcohol policy?
- Improves management commitment
- Consistent approach applied
- Duty of care obligations followed
- Provides certainty when situations arise
- Peer support
Contents of a drug and alcohol policy
- Aims and objectives
- Scope - include social functions
- Responsibilities – for employees and management
- Procedure for testing
- Infringement of the policy
- Process for dealing with someone who is suspected of being impaired:
- at the function
- post function.
Employers that do not currently have a drug and alcohol policy in place may be interested in the CCI Employer’s Guide to Managing Drugs and Alcohol in the Workplace.
For further information contact CCIWA’s Employee Relations Advice Centre on (08) 9365 7660 or email email@example.com.