Managing exposures during the silly season

As the year draws to a close, many employers will be celebrating the end of 2015 with their employees, and other work colleagues. Work functions such as Christmas parties are a great opportunity to have fun with colleagues, but as is still too often the case, work Christmas parties can be a source of considerable distress and can cause significant loss and damage to the business and its employees. This is especially the case when inappropriate workplace behaviour put employers at risk of sexual harassment, bullying, discrimination and unfair dismissal claims.

Under work health and safety laws, an employer owes an overarching duty to take all steps reasonably practicable to prevent the risk of injury in the workplace. The same duty of care is owed generally under the common law. In the context of work Christmas parties, subtler risks can often be overlooked by employers such as the service of alcohol, at an employer’s expense, and the possibility of illegal drug taking and in some circumstances sexual misconduct amongst staff.

It is worthy to note that the meaning of a “workplace” has been extended through judicial decision to include not only a principal place of business, but may well include social gatherings at bars, restaurant or other public venues at which interactions amongst staff occur.

In this respect, and given the ability for sexual harassment and other claims to be commenced against employers as well as individual perpetrators under accessorial liability provisions provided for in various legislative instruments, it is imperative that employers take all reasonable steps available to them to provide employees with proper information, training and supervision to prevent such issues from arising.

Examples of recommended control measures include:

• developing and implementing policies around appropriate workplace behaviours, and refreshing these expectations with your employees regularly and especially at this time;
• consulting with staff in relation to your expectations of their behaviour at work Christmas parties and other social work events;
• providing training to employees on their obligations under various legislation, including in respect of work health and safety; and
• providing access to counselling and an EAP services.

In the event that a complaint or inappropriate workplace matter is raised about alleged misconduct at a work Christmas event, it is of vital importance that responsive action is taken quickly by employers. Such measure that ought to be considered, depending on the sensitivity of the issue, include:

• providing counselling and support services to the complainant;
• taking the matter seriously and properly  investigating any incidence of inappropriate behaviour;
• keeping the complainant informed as to the steps being taken to respond to the matter;
• cooperating with Police and notifying the relevant safety regulators (if warranted);
• investigating the matter fully either internally or via a third party investigation service;
• notifying the employee against whom an allegation has been made and requesting their response; and
• suspending the accused employee until all the facts have been gathered and a course of action has been decided upon.

In approaching these matters, practical strategies employers should otherwise bear in mind when responding to workplace complaints include:

• avoid delaying the response time to allegations;
• never assume an allegation is frivolous or vexatious without making inquiries;
• consider all the evidence and then determine an appropriate disciplinary response;
• document clearly and comprehensively your records at each step of the response process;
• provide employees with counselling or an EAP services provider; and
• communicate effectively and appropriate when dealing with sensitive workplace matters.

Our recommendation to surviving the silly season is to be honest with yourself as to whether everything reasonably practicable to provide a safe system of work has been considered, bearing in mind the broad definition of a workplace.

If any further information in relation to any aspect of this alert is required, please do not hesitate to contact us. Otherwise, we are available and ready to assist should you require any advice or legal support this silly season.

We wish you all well for a safe Christmas and prosperous New Year.