A Silly Season Reminder

In Australia, “the concept of being ‘at work’ encompasses both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by the employer” (Bowker v DP World Melbourne Ltd (2014) 246 IR 138; [2014] FWCFB 9227 at [51]). In other words, work can include work Christmas parties, although this definition has also been applied in a much broader context.

Similarly, in the UK, whether the company-organised Christmas party takes place in the office or not, it will be considered to be an extension of the workplace, as confirmed many years ago in the case of Chief Constable of Lincolnshire v Stubbs [1999] ET/38395/96. Of course, it is often the case that even when the formal event comes to a close, the party continues elsewhere. Should an incident occur at an after-party, an employer's liability may cease if the (unfortunate) events stem from an entirely independent, voluntary, and discreet event of a very different nature to the company-organised party (as was the view taken in Bellman v Northampton Recruitment Ltd [2016] EWHC 3104).

As Father Christmas (or Santa, if you prefer) travels the world in a night delivering presents to all those who have been good this year, we too, operate globally. Therefore, set out below are our three key festive season tips for employers in Australia and the United Kingdom to minimise the risk of claims and unwanted publicity arising during the Christmas period.

1. Christmas Party Preparation

   Whilst work Christmas party invitations and/or communications might be perceived as ‘grinchy’, they should clearly outline:

   • a set venue or location;
   • a start and finish time;
   • considerations for returning home such as provision of minibus services or taxis, or finishing the event before the nightly closure of public transport services; and
   • behavioural expectations of employees both for the purposes of the party and in general, with links to applicable workplace policies and procedures.

   Employers should also consider whether they should ask a particular individual, typically a senior manager, to be the person responsible for arranging and communicating the logistics of the event.

   When preparing for a Christmas party, it is vital to take everyone’s needs into account. Celebrations must be non-discriminatory, and this can relate to anything, from the theme of the party to the timing of the event. Food and drink options should take vegetarian and vegan requirements into account. Employers should also avoid clashes with other religious holiday dates such as Hanukkah, or the Islamic New Year. Also, remember to invite people who may work for the company but might be on leave, i.e. maternity leave. Nobody likes to be left out of the party!

   Whilst this may be a lot to think about and some aspects of the above will need to be factored into budgeting, it may assist in mitigating and/or defending any claims that may arise. While it is hard to stop employees over-indulging, limiting the amount of alcohol at the party, providing non-alcoholic options and supplying enough food can all help minimise the risk of employee misconduct.

2. Risk Mitigation

   Although it is already early December, it is still worthwhile for employers to review, and if necessary, update their workplace policies and procedures to ensure compliance with legislation. In Australia, the definition of sexual harassment was only last year incorporated into the Fair Work Act 2009 (Cth) and includes:

   • an unwelcome sexual advance;
   • an unwelcome request for sexual favours; and
   • other unwelcome conduct of a sexual nature in relation to another person.

   In order to mitigate the risk of vicarious liability, an employer must take all reasonable steps to prevent sexual harassment. This may include “… advice in clear terms that sexual harassment is against the law, and identification of the source of the relevant legal standard, is a significant additional element to bring to the attention of employees in addition to a statement that sexual harassment is against company policy, no matter how firmly the consequences for breach of company policy might be stated. I take the same view about advice that an employer might also be liable for sexual harassment by an employee…” (Richardson v Oracle [2013] FCA 102 at [163]).

   The national guidance material prepared by Safe Work Australia is relevant for employers to consider, in relation to whether or not it can make out the “all reasonable steps” defence.

   The position is similar in the UK, and employees should be reminded of current employer policies that relate to equal opportunities, discrimination, bullying and harassment, drug and alcohol misuse, and should be made aware that the business has a clear disciplinary and grievance policy.

   An unauthorised photograph posted to social media following a work Christmas party is just one of the other possible pitfalls associated with such events, so employers may want to remind employees of their obligations with regard to social media and/or point to a social media policy, should the company have one.

3. Management of Complaints

Employers must ensure that regardless of when a complaint is made, who it is against and how minor it is perceived to be (never dismiss a complaint as ‘nothing’ or ‘just banter’!), it is dealt with promptly and with due consideration. In that context, it is important for all employees to understand how to make a complaint, who they can speak to, and what actions they can expect by their employer as a result of raising concerns. It is also important for employers to emphasise an employees’ protection in the event they make a complaint.

Depending on the nature of the relationship between the complainant and the complainee, the seriousness of the allegations and various other business considerations, it may be necessary for an employer to engage an independent third party for the purposes of conducting an independent investigation.

Following a number of recent and very high-profile cases of sexual harassment in the workplace, employees are no longer willing to accept inappropriate conduct and unwanted advances from their colleagues. Quite rightly, they (or a third party) are more prepared than ever to call out this behaviour and employers are duty bound to ensure that they have the systems in place to respond appropriately and compassionately. Increased employee confidence to raise complaints, coupled with the prospect of employees bursting with a desire to enjoy festive merriment again, creates a perfect storm for things to go wrong. We’re not saying ‘cancel the party’, but taking note of our three key tips will hopefully help to increase the chances of employers having a complaint free festive season.