The No No Nos for end of year functions

It is the time of year when employers encourage their staff to celebrate another year’s hard work – a time to bring together employees who may rarely meet face-to-face and to reward them for their hard work. It is also unfortunately the time of year for alcohol-fuelled indiscretions, allegations of workplace bullying, sexual harassment, and even injuries as a result of end of year parties.

Clients often ask for advice on balancing their employment, safety and reputational risks against the wish to celebrate the end of year with employees. We summarise some of the key issues below.

Preparation

As with all workplace related events, an employer will owe a duty of care to its employees. This means that an employer can be held vicariously liable for the conduct of its employees and any bullying, sexual harassment or injuries that may occur at the event, unless they can show that they took all reasonable steps to reduce, mitigate or manage a risk.

As a result, employers should take time in the lead up to the end of year to review their policies and procedures, particularly those around workplace conduct, sexual harassment, discrimination and bullying. Employers should ensure that these policies reflect their needs and that staff have received recent training in those policies.

If staff have not been trained at all, or in the last two years, employers should induct all staff in the policies and ensure all staff understand their rights and obligations under those policies and procedures.

Communication

Even if staff have received training in the relevant workplace policies, employers should remind all staff about the content of those policies and the expectations around acceptable workplace behaviour at end of year functions.

In particular, employers should remind employees that end of year functions are still to be regarded as workplace functions which require appropriate standards of behaviour to be met. This reminder can be particularly relevant where alcohol will be served or where a function occurs outside the workplace and/or outside normal working hours.

Employees should also be reminded that they are required to dress appropriately for events. This means that even where an event has fancy dress or a theme, employees still need to ensure that their clothing is not offensive or inappropriate.

Venue

The venue for an event is important, not only to set the correct tone and encourage the right employee behaviours, but it needs to be a safe environment for employees to enjoy the event. This is not simply a matter that should be left up to a social club or committee, but should be considered and agreed to by an appropriate manager.

Limiting the supply of alcohol

The Fair Work Commission has taken different approaches to questions of employee misconduct which arise when the employer has supplied its employees with unlimited access to alcohol.

In one case, the Fair Work Commission was critical of an employer who required staff to adhere to normal standards of business behaviour at a Christmas function while also permitting staff to access unlimited alcohol at those functions.

In a separate decision, the Fair Work Commission accepted that it is an employee’s choice to drink alcohol to excess and that although excessive alcohol consumption may explain an employee’s behaviour, it is not an excuse for bad behaviour. To minimise the risk of bad behaviour and potential claims by employees, including those employees who may be injured at end of year functions and those who may be affected by another employee’s inappropriate behaviour, employers should ensure that responsible service of alcohol guidelines are adopted and provide sufficient food and non-alcoholic and low-alcoholic drinks.

It is also normally advisable that at least one manager limits their alcoholic consumption and is designated to generally monitor, and if necessary, limit or stop any employee’s consumption where it has become problematic. This can assist to de-escalate issues before they become more serious.

Generally, having trained staff serving alcoholic drinks, as opposed to employees “self serving”, is another way of managing alcohol assumption. This is particularly important where any employees may be under 18 years of age.

Where food is provided, employees’ food allergies, intolerances and dietary restrictions will need to be considered and food should be clearly labelled.

Secret Santas and gifts

Some events will feature “Secret Santas” or employees giving gifts to one other. Employees should be reminded that while these gifts are often intended to be light hearted, they should not be offensive or otherwise be in breach of the employer’s policies.

After parties

Employers should limit their involvement with “after parties”, to ensure that there is a clear delineation between conduct connected with the workplace and conduct which occurs outside of, or separate to, the workplace event. This will assist in reducing potential liability for conduct or injuries sustained at any after party.

One way of achieving this is to have a clear time by which the work event comes to an end and requiring employees to leave the event location at that time.

Travel home

Employers may need to consider whether a transport alternative should be provided to employees, whether that is to transport employees from a remote location back to where there are normal transport hubs, or providing vouchers/reimbursements for employee taxi rides home.

Response to incidents

If, despite taking the steps above, an incident occurs at a workplace function, an employer should manage its response to those incidents in a timely manner and consistent with its policies and procedures.

While quick management of incidents can be challenging when employees take annual leave over the Christmas period, employers should take appropriate action as soon as possible in relation to any incidents that occur or complaints that have been made.

As part of that response, employers may also need to keep an eye out for any photographs taken at the event and any social media posts about the event, which suggest or show inappropriate conduct.

Our Employment Advisory Team can assist with the review of workplace policies or procedures, or the development of training in these policies or procedures. We can also assist employers to manage any specific risks or incidents that may arise out of end of year functions.