Christmas Party Legal Risks at a Glance

No matter what your version of a Christmas party normally looks like: be it working an overcrowded room and mingling with colleagues, hitting up the dance floor, squeezing onto a table for lunch in a fancy restaurant or enjoying an outdoor group activity, the reality is that Christmas parties just won’t look like Christmas parties this year (of course, given the horror that has been 2020, we totally get that employees may be keener than usual to see the event go ahead).

The arrival of the 2019 novel coronavirus disease (COVID-19) pandemic has been accompanied by recommendations to social distance from others, and government-imposed restrictions on gatherings, the operations of business premises and travel. This seismic shift in the way we interact with our fellow workers has been managed quite effectively by many organisations who have staggered start times, changed office configurations and transitioned employees to working from home. In fact, some states have even imposed public health orders directing an employer to allow an employee to work from their home where it is reasonably practicable to do so (for further information see Practice note, Q&A: COVID-19 (Coronavirus) and employment law: Am I entitled to require my employee to work from home?).

A number of employers and employees have actually benefited from the flexibility these new arrangements have presented, but with Christmas around the corner it is time to reflect on the impact restrictions will have in an environment that is the antithesis of social distancing…the office Christmas party.

Bah humbug! Will we still have restrictions by Christmas?

It is most likely we will still have restrictions by Christmas, although the situation is less clear in Victoria. However, the size, configuration and location of the event will depend on the state or territory in which you live.

The nature of restrictions is constantly and rapidly changing, and we recommend you refer to our quick reference guide for the most up-to-date information on current restrictions in each state and territory (see COVID-19: Current restrictions on gatherings, premises, travel and quarantine in Australian states and territories).

That all looks complicated. So, what will my Christmas party look like this year?

Again, how your Christmas party is looking this year depends on where you live. In the Northern Territory, South Australia and Tasmania, for example, there are limited restrictions on gatherings so Christmas parties can (technically) resemble what they did pre-COVID-19. Residents in states such as Victoria and New South Wales on the other hand have been warned to plan for small Christmas and New Years celebrations and, in those states in particular, the chance of having a large, boozy corporate bash seems very unlikely.

Realistically, it is expected that even in states with eased restrictions organisations will be reluctant to put on a big Christmas party this year. Not only does the threat of a resurgence in COVID-19 cases remains ever present; the financial implications from the pandemic have hit a number of organisations hard and putting on an expensive end-of-year celebration will likely be considered inappropriate.

Regardless of the state in which you live, you can be pretty much assured that:

  • There will be no communal food arrangements along the lines of buffets or sharing of utensils.
  • Dancing and karaoke will be off limits (which may not be such a bad thing).
  • Hand sanitiser will flow as freely as the drinks (and the line will be a lot shorter).
  • Corona beer will be in high demand.

Given the increased risk of transmission of the virus indoors, particularly in venues where food and alcohol are consumed, it is also likely that organisations will choose to have their Christmas party outside and during the day. We will likely also see the emergence of the virtual Christmas party this year.

Really? A virtual Christmas party? Is that a thing?

Yes, a virtual Christmas party is really a thing! As with work conferences, meetings and Friday night drinks, it is almost inevitable that we will see the office Christmas party move online this year. Think team members with Santa hats and reindeer ears eating and drinking together, making small talk (albeit with the occasional two-second awkward delay), swapping gifts, playing games and dancing … all in the comfort of their own homes. Another option for organisations may be holding a small office gathering and giving employees the option of dialling in via a video call so they can share the experience from home.

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Sounds great! If my Christmas party is online, I won’t have to worry about risks arising from my employee’s behaviour, right?

Um, no, you really do need to worry about risks arising from your employee’s behaviour at an online Christmas party. The liability of employers for the actions of their employees will extend to work functions that are held online.

Work health and safety obligations

Employers have a legal responsibility to protect the health, safety and welfare of their employees when they work from home; and, yes, that extends to participating in an authorised work function. If employees have already been working from home for some time it is likely that an employer will have already conducted a risk assessment of the workspace to see if there are any potential hazards or safety risks. However, if you are planning on having any form of games or (gulp) dancing at your virtual Christmas party, employees will need to update that assessment to make certain any hazards are removed.

Of course, alcohol combined with a party atmosphere increases the likelihood of employee misadventure, and the problem with events held online is there is no staff member to limit alcohol consumption and no responsible service of alcohol in the employee’s home. Employers need to be mindful of their responsibility to their workers, and in order to avoid the risk of employees causing harm to themselves (or others) both during and after the function, it would be best practice to make the Christmas party a teetotalling affair.

However, if you are permitting employees to drink during the online Christmas party, it is suggested that employers:

  • Consider having the function during the day and whether or not partners and children are also invited to attend.
  • Nominate a clear start and finish time for the function and confirm any actual or online parties facilitated by staff before, during, or after those times are not approved by the employer.
  • Not permit any dancing or physical games.
  • For smaller functions, have a designated moderator who is not drinking and is able to “keep an eye” on employees’ behaviour online. This moderator should have administrator functionality over the online platform used to host the party and the ability to mute and, if necessary, remove attendees from the session. Shift the focus from the consumption of alcohol by nominating an MC (ideally separate to the moderator) responsible for scheduling and running non-drinking activities to take place during the course of the party (can anyone say work bingo?!) and organise for the delivery of food to the homes of attendees.
  • Confirm the address of where employees will be located when they participate in the online Christmas party, and ensure the moderator is provided with rapid access to these details should an emergency occur.

Bullying and discrimination

In addition to their work health and safety (WHS) obligations, employers need to be vigilant in preventing bullying, sexual harassment or other forms of discrimination that can occur (for example, derogatory or sexually explicit comments made about a person that the employee says was “just a joke”) at the online Christmas party.

Employees (particularly when consuming alcohol) may feel emboldened to make inappropriate statements about other workers if they are behind a computer screen and out of the direct line of sight of their manager. The use of instant messaging platforms and functions also gives the perception that conversations are “private” which means such statements can be made covertly and easily.

It is important to remind all workers that they are still at work, and their conduct during the course of an online function is held to the same standard as when they are present in the office. Inappropriate comments and conduct (such as obscene gestures) online must not be tolerated by an employer.

A failure to take steps to manage the risk of workplace bullying, discriminatory or sexually harassing conduct can result in a contravention of anti-bullying laws in the Fair Work Act 2009 (Cth), WHS laws, and state and federal discrimination laws. In some circumstances your organisation as the employer could be held directly liable for the discriminatory conduct or unlawful sexual harassment of an employee. However, where an employer has taken all reasonable steps to prevent the conduct, they may have a defence to liability.

It is important to remember that complaints about bullying, discrimination and sexual harassment should never be ignored. They should be investigated promptly and in accordance with your grievance or other applicable policy.

9 tips for a successful virtual Christmas party

  1. Remind employees in advance of the Christmas party that it is an extension of the workplace, and inappropriate behaviour may lead to disciplinary action being taken in the same way it would as if it took place during work hours or took place at a physical venue.
  2. Similarly, remind employees that the employer’s policies continue to apply to employees in the same way they would for any other work function, including, for instance, policies setting out the expected standards of behaviour of employees and policies relating to appropriate use of the employer’s computer resources and systems.
  3. Ensure the party has an official finishing time, and that staff are aware any pre or after parties are not authorised by the employer.
  4. Provide employees with information on how to stay safe while attending the virtual Christmas party, including being mindful of excessive alcohol intake, ensuring they have considered any hazards (such as trip hazards or small children) in the environment where they intend to join the online party, and providing the employer with up-to-date information on their location.
  5. Make sure your organisation’s Sexual Harassment, Bullying and Discrimination Policy specifically covers employee behaviour at social functions and out-of-hours conduct where such conduct has a relevant nexus to the workplace, and that employees are reminded of its applicability to online events.
  6. Ensure your organisation’s policies relating to use of the organisation’s IT resources and network, and workplace surveillance, cover any current or new resources or online platforms proposed for the online Christmas party.
  7. Refresh staff on your Social Media Policy to ensure that inappropriate photos, videos, or comments are not taken, made and/or posted online during or after the party.
  8. Have a complaints policy and procedure for dealing with any complaints promptly and in the appropriate manner.
  9. Consider potential issues or emergencies that may arise and develop plans or procedures to respond to those issues or emergencies. Ensure that those employees who are responsible for the smooth running of the Christmas party are aware of those plans or procedures, have been trained in them (if necessary) and have the equipment or means necessary to implement the plan or procedure.

For further information on preventing a bullying and discrimination claim, see:

Practical Law subscribers can access more information on preventing a bullying and discrimination claim, managing out of hours conduct and the use of social media in the following practice notes on the Practical Law Australia site:

  • Practice note, Anti-bullying under the Fair Work Act 2009 (Cth)
  • Liability of employers for out of hours conduct.
  • Monitoring and surveillance of social media use of employees.
  • Disciplining employees for out-of-hours conduct.

And most importantly of all, have a safe and jolly festive season from all at Practical Law!

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