In many workplaces, particularly in Victoria and NSW, working from home has become commonplace, and restrictions exist on the number of people who can dine in hospitability venues. In these states, the traditional firm wide office Christmas party is unlikely to proceed. In the other states around Australia, there may be less COVID-19 restrictions, however, many Christmas parties are likely to be more subdued this year, given the financial impact of the pandemic on many workplaces and families. As such, smaller team gatherings, and outdoor events such as picnics and BBQs will likely be more popular. Some companies are also investigating alternatives to the traditional party, like virtual events, or alternative ways to reward employees such as gifting employees the afternoon off or providing a Christmas hamper or gift voucher.

For employers that do proceed with a Christmas function, including virtual events, they need to be mindful that they remain legally responsible for the conduct of employees at work related events, and any unlawful behaviour engaged in by employees can be the subject of a workplace complaint or litigation. In planning a 2020 Christmas function, the following legal issues should be considered.

Work Health and Safety

The Work Health and Safety Act 2011 requires persons conducting a business or undertaking (PCBU) to ensure, so far as is reasonably practicable, the health and safety of employees and other persons. Christmas parties and client functions are undertaken as part of the conduct of the business or undertaking.

In preparing for a Christmas party, employers should undertake a risk assessment of the event, including taking into consideration the venue, number of attendees, alcohol to food ratio and so on. This will enable the PCBU to identify potential and foreseeable risks and hazards with a view to being able to implement control measures to ensure the safety of those in attendance.

With COVID-19 in mind, part of this year’s assessment, will include ensuring that the venue is large enough to comply with physical distancing guidelines, and checking that the venue has a COVID-19 Safety Plan in place. Employers will also need to ensure that COVID safe guidelines are communicated to attendees in advance, and that COVID safety precautions are adhered to during the event.

For employers that opt for a virtual event, be mindful that health and safety obligations extend to online Christmas parties. In the same way that employers have an obligation to protect their employees’ health and safety while working from home, they will also need to conduct a risk assessment of any virtual work function. Similar to in-person celebrations, it is suggested that employers assess the risk of harm of any dancing, physical games or activities planned as part of the virtual event, as well as the risks associated with permitting alcohol during the event. Similar to in-person events, employers need to consider what measures can be taken to avoid excessive consumption of alcohol, minimise any hazards, and set a clear start and finish time for the online event.

Harassment

State and federal anti-discrimination laws provide that employers can be held legally responsible for acts of discrimination or harassment that occur in the workplace or in connection with a person’s employment. To minimise their liability, employers need to demonstrate that they have taken all reasonable steps to prevent discrimination and harassment from occurring in their workplaces, and that they have responded appropriately to resolve incidents of discrimination and harassment. Courts are more than willing to view Christmas parties and other ‘celebratory out-of-hours events’ as connected to the workplace and an extension of the working environment.

It is vitally important that:

• Employers have sound workplace policies in relation to harassment and sexual harassment
• These policies and procedures are enforced as a cultural norm from the top of the organisation
• Employees are reminded as to the policies, and advised that they apply during work social functions, and out-of-hours events where they is a relevant nexus to the workplace
• Expectations as to behaviour are emphasised to continue to apply in the context of Christmas parties.

An employer’s obligation to prevent discrimination and harassment will extend to an online Christmas party, and it is important to remind employees that their conduct during a virtual event is held to the same high standard as when they are physically present in the office. Any bullying, discriminatory or sexually harassing conduct online must not be tolerated, and any complaints must be dealt with promptly and appropriately investigated.