Christmas Parties & the Law
Disclaimer: This article is intended to provide a summary and general overview only. It is not intended to be, nor does it constitute, legal advice. You should seek legal advice from a lawyer (whether barrister or solicitor) working in the area of employment and human rights law before acting or relying on any of its content.
Everyone loves a good work Christmas party. However, few people appreciate just how quickly a work Christmas party can go from fun and festivity to an employment law nightmare.
Two years ago I was involved in a matter where an organisation organised a congenial work dinner followed by a karaoke session at a bar for its employees. The night started with food, drinks, songs and fun but ended with staff members ‘doing cocaine’, followed by a serious sexual assault allegation being made.
From the outset, it was clear that the organisation simply hadn’t planned for anything to go awry on the evening, let alone serious misconduct and criminal behaviour of the most serious kind. Policies and procedures relating to expectations around staff behaviour, drug and alcohol policies and sexual harassment were negligible and incoherent. The matter quickly descended into a managerial nightmare, as senior personnel scrambled as to what to do.
What might have been done differently?
Workplace policies pertaining to drugs and alcohol, drug and alcohol testing (if appropriate), bullying, victimisation, discrimination, harassment (including sexual harassment) and Occupational Health and Safety should have been explicit and reinforced through a pervasive organisational culture.
Staff members should have been reminded of these polices, both by email and during workplace meetings, immediately prior to the Christmas function. And rather than just reciting legalistic policies and procedures, staff members should be given practical examples as to what constitutes unacceptable behaviour.
It was also clear that the company had no proper demarcation between their work Christmas party and post-Christmas party events. Organisations need to be unambiguous about when the Christmas party comes to an end and make it plain that any ‘after parties’ or post-Christmas party activities are not arranged or endorsed by the organisation. Some managers erroneously think that simply because an event is held off-site, or hosted by a restaurant or karaoke bar their liability is limited, however depending on the nexus between workplace and social activities, an organisation can be exposed to a raft of employment law actions. For this reason, implementing measures such as arranging transport home (such as taxis or Uber) can be a good idea.
A proper grievance policy should have been in place.
An independent investigator should have been brought in to assist with the handling of the matter. Unfortunately, in this matter, management attempted to investigate the matter but this left it open to criticism that the investigations conducted were not impartial, objective and motivated by a desire to arrive at the truth as to what had occurred, but instead aimed at preserving the reputation of the company.
Because of the lack of clarity around policies and procedures, not only was the investigation slow to get off the mark but it also proceeded in an ad hoc fashion. Rather than leading to a better understanding of what had occurred on the evening in question, in the early phases, different and sometimes competing accounts were floating about as to what had transpired.
Remember Closed Circuit TV (CCTV) footage. Whether it be in restaurants or bars, the prevalence of CCTV footage in this day and age is astounding. In the early stages of the investigation a number of staff members (including those that were apparently well-affected by drugs and alcohol) were speculating as to what had occurred at various points in the evening in circumstances where entire events were captured on CCTV footage.
Senior staff members should lead by example. As clichéd as it sounds, management should be living up to the values and ethics that the organisation espouses. In this case, when one of the senior managers attempted to take disciplinary measures against one of the staff members involved inappropriate behaviour, the senior manager was reminded by the junior employee that he had routinely taken cocaine with him at work functions in the preceding year. This led to allegations of double standards applying and concerns by management that one of their star partners may be the subject of adverse media attention and/or disciplinary action as well as criminal charges (if the junior employee reported the senior partner to police).
Work parties while often a great way to build cohesion and reward staff for hard work need to be properly managed. The reality is that a party gone wrong can quickly escalate into:
(a) Damage to the professional reputation of a business as well as that of its employees.
(b) Increased costs e.g. if property is damaged (be sure to see what conduct is covered by your insurance policies for work related parties and events!).
(c) Increased absenteeism (in as much as the complainant may need time of work to recover from the incident and staff members, the subject of disciplinary action, may need to be stood down or suspended pending further investigation).
(d) Unfair dismissal claims (e.g. if the complainant believes that because of the alleged offenders conduct he or she has had no choice but to resign).
(e) A discrimination claim being brought in the Ant-Discrimination Board of NSW.
(f) A discrimination claim being brought in the Australian Human Rights Commission.
(g) A bullying claim being brought to Fair Work Australia.
(h) Being investigated by the Fair Work Ombudsman.
(i)A Safework NSW complaint being instituted.
(j) Adverse action claims.
(k) Other actions in law.
By Sebastian De Brennan, Barrister, firstname.lastname@example.org