With a busy month ahead for many businesses holding work social functions and Christmas parties it is a good time to consider your workplace policies and practices and how they apply to social functions and behaviour that is outside the usual office or workspace.

Our regular, seasonal warning is about the multiple risks facing an employer in holding work Christmas parties, and the necessity of having effective policies to deal with social functions and misconduct. Mixed with alcohol, Christmas parties can encourage employees to lose their inhibitions and engage in poor behaviour. This can lead to complaints, from sexual harassment and bullying, to verbal abuse and physical violence.  Added to this is the ever-present obligation on the employer to prevent harm and ensure a healthy and safe workplace, which extends to work-related social functions that might occur outside of the work premises, and outside working hours.

A well-drafted social functions policy can be an effective tool for employers to set expectations, reduce risk and take action in the event of misconduct.

Employer Obligations

Since December 2022, the Respect@Work reforms have required employers to take reasonable and proportionate measures to eliminate, as far as possible, unlawful behaviour. This includes sex discrimination, sexual harassment, sex-based harassment, conduct that creates a hostile workplace environment on the ground of sex and victimisation of people who complain.

This legislation applies to workplace events that are deemed to be in connection with work, and therefore organisations and businesses must take this obligation into account when they hold workplace Christmas Parties.

Employers need to manage the risks to the physical and psychological health and safety of workers. Sexual harassment and bullying are recognised as psychosocial hazards that must be actively identified and controlled. Codes of practice on sexual and gender-based harassment specifically mention work social events such as Christmas parties.

Since March 2023, the Fair Work Act has prohibited sexual harassment in connection with work. An employer can be held liable for harassment by its employees unless it can show it took all reasonable steps to prevent it. A clear policy that staff know about, and that is actually enforced, is key evidence of those reasonable steps.

State and territory anti-discrimination laws apply alongside the federal laws, and some go further.

Behaviour not “at work”

Whether or not conduct is sufficiently connected with work and the workplace can have an impact on an employer’s ability to take disciplinary action if an employee engages in misconduct at a social function. A decision on this issue will turn on the particular facts of each case, which can make it difficult for an employer to determine when their workplace policies will apply.

A social functions policy can remove some of this guesswork and clarify to all employees that a work Christmas party is a work-related function, and that all of the employer’s policies dealing with conduct and behaviour will apply. This has the advantage of clearly setting the employer’s expectations of employees’ conduct at social functions such as work Christmas parties, and the likely consequences if those expectations are not met.

Supply of alcohol

Supply of alcohol is a problematic area and one that frequently comes up in relation to Christmas and end of year work functions. Employers’ obligations to ensure a safe and healthy workplace extend to work-related social functions, and employers do have an obligation to take reasonable steps to ensure that any alcohol is served responsibly, and that employee behaviour is monitored to help avoid problems, and accidents, occurring.

A social functions policy can assist to manage these issues, for example by providing for the limitation of alcohol to be served, or appointing persons to monitor alcohol consumption or staff behaviour during the function and authorising those persons to take action if required. A social functions policy should also consider appropriate arrangements to ensure the safe transport of employees at the conclusion of the function.

Consistent approach

Disciplinary action can be compromised if employer standards are inconsistently applied. A policy can assist by setting those standards, as well as setting appropriate and consistent processes in the event of a breach of those standards.  Once a policy is in place, it is important to ensure that all actions taken are consistent with the policy.

Regulators also expect employers to take practical steps to prevent harm, so a policy alone will not satisfy obligations. Before your function, it is worth thinking through the risks of the event, reminding employees of behaviour expectations, ensuring managers are aware of how to respond to an incident at the event and responding promptly and fairly to any complaint afterwards.

Lessons for employers

Many complaints and unfair dismissals arise out of work Christmas parties. Having an effective social functions policy can assist an employer to:

• meet its obligations to ensure a safe and healthy workplace; and
• set standards of behaviour for employees at workplace functions; and
• enforce appropriate disciplinary action against employees in the event of misconduct.

Now is a good time for employers to check if they have a social functions policy, or to update an existing policy, and to make sure that all staff are aware of the policy, and understand the standards of behaviour expected at workplace functions.

If you would like some advice on a social functions policy, or if you need a policy which is customised to suit your particular needs, please contact us and we would be happy to assist.