By Charles Power

The festive season is now upon us, and for many workplaces that means people are able to let loose, have a few drinks and attend Christmas party after Christmas party. While these events are great for team building and morale, they are also a potential source of liability for employers if things don’t go to plan.

Where an injury arises ‘out of or in the course of employment’, a worker will be entitled to compensation for that injury. What is considered to fall within the scope of ‘out of or in the course of employment’ depends on the sufficiency of connection between the employment and the relevant conduct at the time of the injury.

We have prepared a checklist to help employers keep their Christmas parties safe and risk free this festive season.

Sexual harassment and out of hours conduct

Can sexual harassment at an after-party constitute workplace sexual harassment? You might be surprised by the answer.

Sexual harassment that occurs outside of the workplace or out of hours may still be considered to be workplace sexual harassment if there is a sufficient connection between the employee’s out of hours conduct and their employment. This includes conduct that occurs at social events such as after work drinks, Christmas parties and work functions. It may even extend to hotel after-parties, taxi rides, as well as texts, photos and videos sent via social media.

Employers must ensure they not only have sexual harassment policies in place, but that these policies are circulated, enforced and that employees are given regular training. Employers who do not take appropriate precautions risk exposure to sexual harassment claims and hefty awards of damages being made against them. This can range from anywhere between thousands to millions of dollars.

Occupational health and safety and workers’ compensation

Occupational health and safety claims are a major concern at Christmas parties, which usually come hand in hand with hard-earned celebratory drinks. Under OHS laws, employers have a duty of care to protect the health and safety of not only their employees at work-related functions, but also that of third parties.

Employers’ are usually liable for injuries that occur at work-related functions. This may extend to injuries that occur on the way to the Christmas party and on the way home from the Christmas party. However, liability does not extend to accidents that happen once the Christmas party is deemed to have officially ended.

If an employee becomes intoxicated at a work event and injures themselves as a direct result of their intoxication, this may impact their entitlement to workers’ compensation. However, if an employer is supplying the alcohol and does not properly monitor consumption and service, the employer may be liable for negligence if an accident occurs.

Do: If alcohol is being served, ensure food is also supplied (substantial food, not just snacks). Ensure alcohol is only supplied by venues/persons who are RSA certified. If full-strength alcohol is supplied, also offer non-alcoholic and low-alcoholic drinks. Conduct a risk assessment to reduce the risk of slips and trips from spilt drinks, loose cords and decorations.

Don’t: Encourage staff to drink (this means no drinking games!) or allow staff to pour their own drinks, particularly if spirits are being served.

Bullying

At Christmas parties, particularly at off-site venues, it may slip employees’ minds that they are still ‘at work’ and that the same standard of behaviour applies as it would during normal working hours at the office. Sometimes this may lead to gossip, banter and ‘jokes’ which could be offensive to others, and may constitute bullying. Employers have a duty of care to ensure the safety of their workers, which includes protection from bullying, victimisation and harassment.

Employers should put safety measures in place both before and after their Christmas parties to reduce liability and ensure employees are aware of what is expected of them.

What else can employers do to minimise their risk of vicarious liability?

Before the festive season begins and Christmas parties get into full swing, employers should remind employees of their obligations by providing them with existing behaviour policies and by circulating a ‘Festive Season letter’ outlining expectations of them, including a reminder that a breach may result in disciplinary action being taken against them.

Employers should ensure their businesses have the following policies in place, and that they explicitly extend to out of hours conduct:

• Drug and alcohol
• Anti-discrimination and sexual harassment
• Social media
• Workplace health and safety
• Workplace bullying