News & Insights

The Christmas silly season is upon us and so is the most exciting event on the workplace calendar, the work Christmas party. This event is a great opportunity for employees to celebrate the year, unwind and build strong connections with co-workers.

However, the office Christmas party also presents an opportunity for employees to forget that they are attending a work event. The Christmas Party is ordinarily considered a work event which means that your employees will need to continue to observe their obligations under your workplace policies and procedures, and legislation.

Importantly, where an employee’s conduct during a work Christmas party falls foul of your workplace policies and procedures, the employee can be subject to disciplinary action and an employer may be vicariously liable for the employee’s actions.

In this article, we briefly detail three areas of concern for both employers and employees:

1. Sexual Harassment;
2. Bullying; and
3. Work Health and Safety.

Sexual harassment

Sexual harassment occurs when another person makes an unwelcome sexual advance or gesture, where a reasonable person, having regard to all the circumstances, would anticipate that the other person (the ’victim’) would be offended, humiliated or intimidated by such conduct.

Employer obligations regarding sexual harassment have received increased attention in recent times with the recently passed Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Bill) which can be read about in greater detail here.

The Bill has created a positive duty for employers to eliminate sexual harassment and discrimination against a person on the grounds of their sex in the workplace. Though these changes are yet to come into effect, Victorian employers should be aware they already possess a positive duty under the Equal Opportunity Act 2010.

It is important for employers to proactively remind employees of their obligations in relation to complying with sexual harassment laws in the workplace. We also suggest employers have training procedures and appropriate policies in place to ensure that you as an employer are fulfilling your positive duty.

Bullying and harassment

Another common issue which can arise at the work Christmas party are bullying and harassment.

Bullying is distinct from harassment and occurs when an individual or group’s repeated unreasonable behaviour towards another individual or group creates a risk to their health and safety.

The scope of harassment is broad and can encompass one person targeting and discriminating against another person on the basis of the person’s sex, disability or race. Examples of harassment can include insulting jokes, explicit messages, derogatory comments or intrusive questions about a person’s personal life.

Work health and safety

Employers’ obligations under work health and safety legislation continue to apply at work Christmas parties, including their obligation to create a safe workplace, and take reasonable care of the health and safety of their employees.  Where harassment, sexual harassment or bullying occurs at workplace events, employers may be in breach of their work health and safety obligations.

What can an employer do to fulfil their obligations?

Nobody wants to be the Grinch this Christmas and the work Christmas party is, and should be, a lot of fun. We suggest employers turn down the Christmas cheer for a brief moment and take the necessary preventative measures.

As a minimum precaution, we recommend communicating to your employees reminding them that any Christmas party or event is a work event so their obligations are the same as in the workplace and they may face disciplinary action as a result of any inappropriate or unacceptable conduct.

In addition, we suggest employers take the following actions:

• Have appropriate and up to date workplace policies and procedures in place, including in relation to sexual harassment, bullying, and alcohol and drug consumption. A separate disciplinary policy may be appropriate in providing clear guidelines on what and how action is taken when employees breach company policies.
• Communicate clear start and finish times for any events, and stipulate that no after parties are work sanctioned or supported by the business.
• Monitor staff at events (within reason) and direct staff to leave where they are acting inappropriately or unacceptably, or they appear inebriated.
• Deal with issues and complaints made by employees promptly, and in accordance with company policies and procedures and work health and safety obligations.

Next steps

Though we hope your end of year celebrations are only merry, we are here to assist you if needed.

If you require any help in taking the proper precautions to fulfil your obligations or dealing with misconduct or inappropriate behaviour by employees at end of year events, please contact our Employment Safety and Migration team.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.