Surviving the heat - how to handle Christmas and summer work functions

Christmas functions and other work arranged events, although they may be a time to relax, enjoy the festive season and summer weather, are also areas where the combination of alcohol and socialising can lead to increased exposure to claims for employers, particularly workers’ compensation and sexual harassments claims.  Being prepared is the key.

Safety at work functions

In NSW employers must ensure the health, safety and welfare of all employees while at work.  This general duty is taken to extend to work functions, including Christmas parties and other work events such as organising a corporate box at a sporting event (regardless of whether it is at the office or offsite).  This duty still applies regardless of how reckless (or intoxicated) individual employees are at the event. 

For example, a worker in NSW who was under the influence of alcohol at a work Christmas party was entitled to compensation after being injured in an altercation between guests at the party.  This was because the employer had taken no steps during the party to halt its employee’s consumption of alcohol.  It should also be kept in mind that this duty on employers continues during an employee’s trip home.

Employees also have duties under OH&S laws and should not assume they are immune from prosecution.  For example, in Victoria a group of workers were prosecuted for breaching their duty of care under OH&S law.  The workers were put on 12 month good behaviour bonds and ordered to attend 1 day OH&S training after they thought spraying paint thinner on a colleague and setting them on fire would be an amusing thing to do at a work Christmas party.

Sexual harassment – alcohol is no excuse

Sexual harassment allegations abound this time of year. Where employees are socialising at a work sponsored function, the employer can be held liable for offending conduct by employees. Essentially, sexual harassment is any form of sexually related behaviour which a reasonable person would expect to offend, humiliate or intimidate.  Sexually related behaviour is broadly interpreted and would include statements or conduct with a sexual overtone or implication.  The key is how the behaviour is received by the person harassed not the intention of the perpetrator.  Alcohol induced short term memory loss or “it was meant to be a joke” are not defences.

Sexual harassment includes:

• Sexual or physical contact, for example, touching, hugging or kissing;

• Leering;

• Suggestive comments or wolf whistling;

• Repeated sexual propositions or asking someone repeatedly to go out on a date;

• Absurd promises or declarations of love; and

• eHarassment

Importantly, anyone can be sexually harassed. Although it more commonly occurs against women, sexual harassment can occur regardless of age, race or gender.  The harassment need not be limited to employees - being harassed by bar or wait staff at a function for example may also constitute sexual harassment in the work setting.  An employee can also sexually harass a client or customer of the employer in which case the employer may also be vicariously liable.

In NSW, sexual harassment may also amount to discrimination on the ground of sex.  A successful claim can lead to an award of damages for the victim, or in more serious cases, criminal prosecution.  Employers are required to show that they took all reasonable steps to prevent any sexual harassment from occurring.

In 2003, the Administrative Appeals Tribunal held that even where an employer may take appropriate action after a formal complaint of sexual harassment is made, this will not necessarily avoid liability.  In order to meet the requirement of taking all reasonable steps employers must take steps to prevent the harassment from occurring in the first place.  Set out below are some measures that may assist in this regard.

eHarassment

With the proliferation of mobile technology devices such as iPhones, Blackberries and camera/video phones there is rarely a social function that isn’t captured on film in some way.  This has created a new forum for sexual harassment at the touch of a button.  Suggestive SMS, MMS and emails may also constitute harassment in the technological age.  For example, an MMS containing a sexually suggestive image may be unwelcome and offend the recipient and therefore constitute sexual harassment.  Employees should be reminded that distributing inappropriate images after the event may also be offending behaviour.  A group email sent on the night could be costly for the employer in the morning.

Tips for minimising risk of claims

With directors and senior management potentially liable for offences committed by their corporations under OH&S laws and the requirement to take all reasonable steps to prevent sexual harassment, it is important the measures are put in place (and actually followed) to reduce liability.  Paper systems won’t cut it.  Employers need to identify risks and then educate, communicate and monitor.

Reasonable steps would include having comprehensive OH&S, EEO harassment, drug and alcohol policies in place that are communicated to staff and actually enforced.  Proper disciplinary and complaint procedures should also be implemented and followed.  Other tips include:

• Communicate a clear message that your workplace does not tolerate discrimination and harassment.

• Ensure one or more managers/supervisors remain sober to monitor the event.

• Any service of alcohol should be done responsibly.  Consider having a bar tender or someone with an RSA serve alcohol.

• Prior to the function, email (or otherwise communicate with) all employees including links or copies of the company’s EEO, OH&S and other relevant policies (including IT Policies to reduce the risk of e-Harassment).  Ensure the email states they will be enforced and that alcohol will not be considered an excuse for bad behaviour. 

• Point out that employees also have duties under OH&S laws and can be prosecuted for breaches independent of the employer.

• Consider whether a coach/bus should be organised to take employees home or cab charge vouchers (or reimbursement for taxis the following day) should be offered.

• Inform employees that any after parties or post work function events are not the employer’s responsibility.  As part of this process, be mindful of whether you will permit managers or supervisors putting their card behind the bar in a post function event (as this may continue the employment link for compensation purposes).

• Set a reasonable finish time for the event.

• Ensure there is plenty of food and non-alcoholic beverages available.