Employers’ positive duty to smarten up this silly season

The race that stops the nation kicks off the “silly season”, with many employers preparing to take advantage of longer daylight hours by hosting staff drinks, client events and work Christmas parties. These festivities come with a host of legal obligations and risks that must carefully be navigated.  A timely decision published by the Fair Work Commission in October this year serves as a reminder to ensure staff are trained in acceptable workplace behaviours - not through a tick and flick exercise, but via culturally and linguistically appropriate, interactive training courses that convey, in detail, the standards that must be met. Here we outline employer legal obligations and offer practical measures to ensure a safe and enjoyable festive environment that is compliant with recent reforms.

Employers have a duty of care to provide a safe work environment for their employees, even during social events that take place outside of regular working hours and at times when staff might not even be performing any work. This responsibility promotes physical safety and emotional wellbeing, particularly in the context of substance use and the risk of potential harassment.

As of December 2022, employers hold a duty under the Sex Discrimination Act 1984 (Cth) to eliminate, so far as possible, sex-based discrimination and sexual harassment, conduct creating a sexually hostile environment and related victimisation, including by identifying potential hazards associated with Christmas parties and discouraging excessive alcohol and drug consumption leading to antisocial behaviour, accidents, or health issues.

While moderate alcohol consumption can contribute to a festive atmosphere, excessive drinking and drug use pose significant risks to fun. Alcohol can impair judgement and lead to risky behaviours, increasing the likelihood of accidents, injuries, and altercations. We have also observed recent media reports of Australian wastewater analyses pegging the nation as the highest per capita user of cocaine in the world. The flow on is drug use prevalence may also create risks at work functions of harassment and aggression which exposes employers to legal actions.

Employers should have clear policies regarding substance use that extend to work-related social events. These policies should outline acceptable behaviours, the potential consequences for violations, and the availability of support for employees struggling with substance abuse issues. By communicating these policies clearly before an event, employers can set expectations and reduce risks associated with alcohol consumption.

Sexual Harassment and Respect@Work Reforms

The Respect@Work reforms have significantly shifted the landscape of workplace harassment laws in Australia. They emphasise the need to create cultures of respect and safety, which is especially pertinent during social events where alcohol or drugs may impair judgement.

Employers are now legally required not only to respond to incidents of harassment but also to actively prevent them from occurring in the first place. This means that a lack of action or poor management during festive gatherings could lead to legal repercussions more serious than ever before.

Since last year’s silly season, the Australian Human Rights Commission has new investigative, compliance and enforcement powers to ensure employers are meeting their obligations under the Sex Discrimination Act. These include the power to conduct inquiries, compel the production of documents and to conduct interviews, issue compliance notices, apply to the federal courts for a compliance order and even to enter into enforceable undertakings with employers.  We can expect the Australian Human Rights Commission to start acting on these powers.

Practical Measures for Employers

Employers should consider implementing the following practical measures to mitigate foreseeable risks at work events and kick-ons:

1. Set Clear Expectations

The Fair Work Commission has been highly critical of employers who have failed to ensure employees’ safety during the course of work-related events and employers should be aware that workplace groups, such as Social Committees, do not operate in isolation and will not shield an employer from liability for functions they organise. Employers should communicate their policies regarding alcohol consumption, drug use and other behavioural expectations before and during the party and remind employees that the same standards of conduct apply at and after work-related events as they do in the workplace.

2. Limit Alcohol Consumption

Consider providing a limited bar or offering a drink ticket system to manage alcohol intake. Offering non-alcoholic beverages and encouraging employees to alternate between alcoholic, low-alcohol and non-alcoholic drinks can also promote responsible consumption. Some drug use can also have the effect of increasing the user’s resistance to the impairing effects of alcohol, increasing their stamina to continue drinking. So, employers should focus on managing things within their control such as the dispensation of alcohol and limit the availability of alcohol throughout the event.

Three of the easiest steps to take to manage consumption of alcohol are:

1. Provide sufficient food;

2. Do not allow employees to help themselves – drinks should be served by trained staff; and

3. Book a venue – you get what you pay for including qualified staff and security that follow responsible service of alcohol requirements.

3. Provide Transportation Options

To prevent employees from driving under the influence, arrange for transportation options such as taxis or rideshare services. Alternatively, consider hosting the event at a venue that offers accommodation or with access to multiple public transport networks.

4. Train Staff on Harassment Prevention

Conduct training sessions prior to the event that focus on respectful workplace behaviour and the company’s policies on harassment. This not only raises awareness but also reinforces the employer’s commitment to a safe work environment. Deputy President O'Keeffe of the Fair Work Commission emphasised the need for employers to thoughtfully roll out codes, policies and training that deal with both the “what” and the “why” of behavioural management in the workplace, so everyone clearly knows the expected standards, why they were expected and the consequences for breaching them, reducing offensive and unlawful behaviours.

If it has not occurred already, employers should hive off from their bullying and harassment policies a stand-alone sexual harassment and discrimination policy and use that update to the policies as the impetus to conduct thorough staff training.

5. Designate Supervisors

Don’t let the event run itself. Appoint non-drinking managers or HR representatives to oversee the event and monitor behaviour, and ensure they have sufficient authority to have a quiet word with anybody that acts contrary to expectations. Having designated and sober personnel can help address any inappropriate behaviour in real time and provide support to employees who may feel uncomfortable.

If you have employees under the legal drinking age, ensure the servers understand this and that alcoholic drinks are not provided to them under any circumstances.

6. Create a Safe Reporting Mechanism

Establish a clear process for reporting any incidents of harassment or inappropriate behaviour that may occur during the party. Employees should feel confident that their concerns will be taken seriously and addressed promptly and confidentially while the dignity of any alleged victims and perpetrators is preserved.

Does the venue participate in the “Ask for Angela” campaign to keep its patrons safe from sexual harassment? Find out and let the answer form part of the decision-making process when picking an appropriate host for your work function.

7. Follow Up After the Event

Don’t just wait for complaints and assume everything is okay if none are received. After the Christmas party, gather feedback from employees about their experiences. This can help identify any issues that need to be addressed and improve future events in accordance with the positive duty.

Conclusion

While Christmas parties can be a great way to foster team spirit and celebrate achievements, they also present unique legal risks and responsibilities for employers in today’s world. By understanding their obligations, particularly regarding substance abuse and the prevention of harassment, employers can create a safer environment for their staff. Implementing practical measures, such as setting clear expectations, limiting alcohol consumption, and ensuring proper oversight, will help mitigate risks and ensure that the holiday spirit is upheld in a safe and respectful manner.

Ultimately, employers must prioritise the wellbeing of their employees, not just during the silly season but throughout the entire year.

Contact our employment team today to book an interactive training course or enquire about our suite of policies compliant with the positive duty to prevent sexual harassment.  If you need assistance developing your legally compliant safety framework please contact one of the Henry William Employment Law team.