Done right, a work Christmas party can be a fantastic opportunity to bond, reflect and celebrate the year’s achievements. However, there are some important legal risks to keep in mind.

After the upheaval of the last two years, this year’s holiday celebrations will be many employees’ first chance in a long time to come together and enjoy the festive silly season without having to practice social distancing. 

Although they are a highlight of many organisations’ social calendars, Christmas celebrations that are held outside the workplace and fueled by alcohol have the potential to bring out the worst side in certain employees.

“Every year, we see something arising from the festive season, whether it’s at Christmas parties or similar events,” says Aaron Goonrey, employment law partner at Lander and Rogers. “We see incidents and grievances, sometimes of a minor nature, but more often than not of a serious nature. 

“Inevitably, alcohol is always a factor in these types of matters. Harassment is one of the most common. But other things we’ve seen year-on-year include bullying, physical injuries and grievances about being excluded or isolated, which, if repeated, is a form of bullying.”

While the festive atmosphere and the provision of alcohol might give employees a sense of immunity to the consequences of their actions, this is far from the case.

Just earlier this year, the FWC rejected an unfair dismissal claim after an employee from a big four bank was fired for inappropriately touching a female colleague during the company Christmas party.

For party organisers, there is a clear balance to be struck: how can we make the festivities both enjoyable and safe for all involved? 

Five things to consider before your work Christmas party

Goonrey offers some advice for leaders to stay on the front foot when it comes to possible sources of trouble.

1. Consider potential WHS risks

Although a work Christmas party is likely to take place outside the workplace, Goonrey stresses that legal obligations to ensure employees’ health and safety still apply to the organisation.

“Where I have seen employers fall down is where they haven’t taken any effective preventative measures in regards to avoiding or eliminating incidents.

“If there is a connection with work, [the event] will likely be considered an extension of the formal workplace, so employers have an obligation to ensure the safety of all employees who attend any work-related event.”

Just as employers would conduct a risk assessment of an office or workspace, identifying potential dangers associated with the location and the journey there and back is a crucial step in ensuring the celebrations remain safe.

This might mean organising taxis or Ubers for employees to travel home, for example. 

“There are risks in not providing transport, or not having transport readily available,” says Goonrey. “Particularly, if you’re having the event in a remote area and having the finish time of the party in the early hours of the morning.”

2. Remind employees of company values

When it comes to festive celebrations, no manager wants to be the ‘Grinch’ that sucks the fun out of Christmas. 

However, while the importance of respectful behaviour should be clearly communicated to staff all year round, the lead-up to the holiday season is as good a time as any to remind employees what’s expected of them. As Goonrey puts it, “They should let down their hair, but not their dignity.”

“[Christmas parties] are a great time to reflect and celebrate successes and commiserate challenges, and there is a real power in that.” – Aaron Goonrey, Partner at Lander and Rogers

With the recent passing of the Respect at Work Bill, he says, employers have all the more reason to give employees a gentle reminder about appropriate conduct at work and work functions.

“We’re not saying, ‘Don’t go out and have a good time,’ we’re saying, ‘Have a good time, but within reason, because this is an extension of the workplace and you should be maintaining that respect.’ Alcohol may be involved, but that doesn’t give any employee the licence to act in an inappropriate, disrespectful or unlawful way.”

It may also be appropriate to take certain employees aside for an individual caution if they have a known history of behaving inappropriately at work functions, he says. If employers have done their due diligence in this area, they will also be in a stronger legal position to refute an unfair dismissal claim or other legal claim following an incident.

3. Consider appointing a party marshal

When problems arise at a work event, it’s sometimes necessary to deal with them immediately to ensure a safe environment for those attending. However, it can be challenging for managers to swoop in and address these incidents if they themselves are under the influence of a glass of wine or three.

For this reason, Goonrey suggests appointing a ‘party marshal’ to keep a sober eye on things that could go wrong on the night.

“A party marshal doesn’t necessarily have to be someone who’s always on the lookout,” he says. “It’s just someone who hopefully volunteers to do it, but could be chosen, and they will not imbibe alcohol. They’ll just keep an eye out, and can still hopefully enjoy themselves while they’re there.”

If a party marshal is appointed, he says it’s essential to communicate who that person is to those attending the event, so they can be approached by employees who have witnessed or been a part of an incident.

Read Aaron Goonrey’s previous article on Christmas party incidents he’s seen in the past.

4. Take steps to protect your reputation

Employers should be aware of the potential implications of partygoers interacting with members of the public while they are at the event or travelling to and from the venue, says Goonrey. The risk to the employer is heightened when the festivities take place in a public bar or restaurant rather than a private space.

“An aspect you often see in these cases is where people are indiscreet in their communication, and, for instance, tarnish the reputation of their employer by mentioning [negative] feelings,” he says.

“You also sometimes have people who are involved in physical altercations at these types of events, and sometimes it involves colleagues, but other times it involves members of the public who are at the same venue.”

Just because the person who instigated an incident comes from outside the organisation, this doesn’t mean the employer cannot be held liable, he says.

5. Don’t let the risks put you off

Although there are legal and safety considerations associated with a work Christmas party, Goonrey emphasises that the benefits of events like these can have a positive impact that far outweighs the potential risks.

“Christmas parties are great occasions to get to know who you work with on a more personal level, and on an equal playing field,” he says. “And for managers, it’s a good way of connecting with staff who they probably wouldn’t usually connect with in that social setting.”

Even if an incident does occur, addressing the problem does not have to mean spoiling the fun for everyone else.

“It is still a great time to reflect and celebrate successes and commiserate challenges, and there’s a real power in that. I haven’t yet come across an organisation that, when it does have an incident, then cancels the Christmas party the following year.”

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