Tis the Season

Understanding these obligations is crucial to ensuring a safe and enjoyable event for all employees, and for a business to mitigate its risk.

As most employers know, for many purposes, including work, health and safety, workers’ compensation and code of conduct and related policies, activities that are authorised or permitted by an employer, such as Christmas parties, are included in the concept of being ‘at work’. This means that an employer’s duty of care to its workers extends to these events and means that employers can be held vicariously liable for the behaviour of their staff at such events.

There is also established case law surrounding incidents that occur at an after-party or an entirely independent, voluntary, and discreet event of a very different nature to the company-organised party. That case law confirms that a court will look at all of the surrounding circumstances in order to determine whether an employer’s liability ceases in respect of any incident that may occur at the independent event.

In addition to the above duty and potential areas of liability, legislation in Australia now places a positive duty on employers to take reasonable and proportionate measures to eliminate sexual harassment, sex-based harassment and sex discrimination in the workplace.  The UK has recently followed suit in this regard, with employers being under a new duty, since 26 October 2024, to take all reasonable steps to prevent sexual harassment of workers in the course of their employment.

With all of that in mind, below are our festive tips to assist in minimising the risk of claims and unwanted publicity arising during the holiday period.

1. Preparation is the key to success

When preparing for an end of year party, it is vital to take everyone’s needs into account. Celebrations and events must be non-discriminatory. This can relate to anything from the theme of the party to the timing of the event (for example, clashes with other religious holiday days should be avoided), as well as dietary requirements.

Employers should ensure that invitations and/or communications clearly outline:

Finally, consideration should be given to who will be the designated supervisor(s) at the event. These individuals must understand their role, which would include monitoring behaviour and intervening if necessary, as well as being responsible for receiving any complaints/grievances throughout the event.

• a set venue or location;
• a start and finish time, noting that any events or ‘kick-ons’ that take place after the set finish time are not work related or endorsed events;
• considerations for workers 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.

2. Workplace policies

Whilst it is helpful to have workplace policies, they have limited use if they are out-of-date or do not contain provisions setting out what is expected of employees at work-related events.

Employers should update policies to ensure that they cover the expected standards of behaviour, the consequences of misconduct and the procedures for reporting and handling complaints. Policies may also have sections on alcohol management and appropriate safety measures in place, and should make it clear that the expected standards of behaviour extend to any informal or social gatherings.

Information may be contained across multiple different policies, such as discrimination, bullying and harassment, social media, drug and alcohol misuse and grievance policies, or larger companies may have a dedicated social functions policy.

Policies should also be shared with employees well in advance of the events to ensure that they are read and understood and expectations clearly conveyed.  Employers may also want to consider holding refresher training on expected behaviours in the lead up to the event, tailored as necessary (for example, training for managers should remind them about power imbalances and dynamics, which when combined with a relaxed, more informal work social event, can lead to heightened risks).

These actions not only help in mitigating risks but also demonstrate a genuine commitment to fostering a respectful and inclusive workplace culture.

3. Risk Mitigation

Given the duty of care that exists in Australia and the UK, employers must take reasonable steps to ensure the safety of all attendees at an end of year party. This includes managing risks associated with alcohol consumption, ensuring safe transportation options, and preventing any form of harassment or discrimination.

As both Australian and UK employers now have a “positive” or “preventative” duty, respectively, with regards to sexual harassment, they should proactively prevent inappropriate conduct by setting clear expectations and providing training on acceptable behaviour.

For Australia, the detailed guidelines prepared by the Australian Human Rights Commission are relevant to consider in complying with the positive duty. For the UK, the Equality and Human Rights Commission has published updated technical guidance and an 8-step guide to assist in meeting the duty, which is supplemented by some updated ACAS guidelines.  Sadly, it still remains that end of year parties can unfortunately lead to grievances and potentially also claims relating to sexual harassment, therefore it is particularly important to have an effective anti-harassment policy in place and to carry out a sexual harassment risk assessment which includes identifying the level of risks of sexual harassment at work social events. As above, although no one likes a party pooper, appointing designated supervisors to monitor behaviour and intervene if necessary may assist with ensuring that the risks such as sexual harassment are mitigated.

Finally, 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 contribute to minimise the risk of employee misconduct.

4. 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, it is taken seriously and dealt with promptly. In that context, it is important for all employees to understand their company complaints procedure, including how they can make a complaint, who they can speak to, and what actions they can expect by their employer as a result of raising concerns. Often the hardest step for victims (or witnesses) is to take the initial step to report an incident. Therefore employers should make it as easy as possible for people to come forward.

It is also important for employers to emphasise an employee’s protection in the event they make a complaint, which could include highlighting that complaints will be kept confidential and employees will not be victimised for making a complaint.

Depending on the nature of the complaint and the people involved, it may be necessary for an employer to engage an independent third party for the purposes of conducting an independent investigation.

By taking proactive steps to prevent misconduct, employers can create a positive environment that reflects their commitment to the well-being of their employees. Ultimately, by prioritising the safety of all employees during end of year parties and other work-related events, employers can reduce the risk of vicarious liability and contribute to a more harmonious and productive work environment.

We hope that the above tips help to ensure employers have a safe, responsible and complaint-free festive season!