End of year functions

The festive season is upon us and many employers are planning their annual office End of Year party for employees. This provides a good opportunity to toast the successes of the year gone by and celebrate the upcoming holiday season. Although generally an enjoyable occasion, the combination of alcohol, warm weather and a relaxed party atmosphere can also create legal and occupational health & safety concerns for employers.

These concerns are often dismissed as being overly cautious and not in keeping with the festive spirit, however each year there are numerous claims made against employers due to incidents which occur at office parties. In recent years, employees have successfully brought claims against employers in relation to occupational health & safety, negligence, sexual harassment and workers compensation due to claims arising out of work functions.

In order to avoid possible claims against them, it is important for employers to be aware of their legal responsibilities and the potential risks of holding office functions.

Firstly, employers need to be aware that attendance at a work function is considered to be conduct “in the course of employment” and accordingly, they can be held liable for conduct which occurs during the function. Employers must also be aware that their obligations to employees can extend beyond the actual function itself to conduct which occurs after the function has ended. In one case, conduct which occurred in a private hotel room hours after the work function finished, was held to have occurred in connection with their employment, so this obligation is onerous.

Occupational Health and Safety

Pursuant to Occupational Health & Safety legislation, employers have an obligation to ensure the health, safety and welfare of employees whilst at work, which includes the office party.

The best way to avoid occupational health & safety issues is to plan the function carefully and inspect the venue thoroughly. They should identify the potential hazards, assess possible risks and implement controls prior to the function, so they are able to show that they took all reasonable steps to keep the risk of injury as low as possible.

Sexual Harassment

Sexual harassment is defined to be unwelcome conduct of a sexual nature which a reasonable person would expect to offend, humiliate or intimidate. When determining a sexual harassment claim, the law considers the reaction of a reasonable person in the perpetrator’s position, so the fact that the individual involved does not find it offensive is not a defence. Common examples of sexual harassment include unwelcome physical contact, suggestive comments, leering and unwelcome and persistent questioning into an individual’s private life (including inappropriate requests). It should be noted that consensual behaviour does not constitute sexual harassment.

As in relation to occupational health and safety, employers should take all reasonable steps to prevent sexual harassment before or after the End of Year function. This includes:

  1. Ensuring there are thorough OHS, harassment and dispute resolution policies in place, which are known by employees. It is a good idea to send around an email prior to the function reminding staff of these policies;
  2. Ensuring that employees are made aware of the types of behaviour which are inappropriate;
  3. Ensuring that all complaints are taken seriously and dealt with quickly; and
  4. Ensuring that managers and senior personnel are adequately trained to identify sexual harassment risks and manage the situation accordingly. It is also a good idea to delegate some managers to remain sober so that they are able to intervene if any situation develops.

Alcohol Consumption

Alcohol consumption is a leading cause of dangerous or inappropriate behaviour at all times of the year, but particularly at End of Year functions. In a case arising out of a work function several years ago, a court held that an employer who had allowed employees to consume excessive amounts of alcohol had neglected its duty of care to them.

There are several obvious steps which an employer can take to ensure that they meet their obligations to employees in relation to alcohol consumption. These include:

  1. Ensuring they have a drug and alcohol policy in place. Again, it is a good idea to circulate an email prior to the function reminding staff of these policies;
  2. Formally reminding employees (preferably in writing prior to the function) of the dangers of alcohol consumption;
  3. Providing non-alcoholic drinks and a sufficient amount of food;
  4. Designating particular staff to supervise and prevent excessive drinking;
  5. Making taxis, buses or other forms of transport available to employees after the function; and
  6. Ensuring that any employees below the drinking age do not drink.

The office party should be an enjoyable and relaxing time of the year. If employers are aware of the risks that arise at these functions, and ensure that they take reasonable precautions to guard against these, then the festive season should go off without a hitch.

NECA Legal can assist members with policy development to help ensure the safety, protection and enjoyment of their employees. These policies can include social function, equal opportunity, drug and alcohol, bullying and harassment policies as well as grievance resolution processes which can be implemented and updated for particular business circumstances.

Disclaimer: The above summary is not legal advice. For more information or if you would like NECA Legal’s assistance with policy development, contact NECA Legal on (08) 6241 6129 or email necalegalwa@necawa.asn.au.