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Sleigh Down the Law

How to avoid liability at Christmas parties this festive season

By Andrew Tiganis

With the festive season fast approaching, many workplaces are beginning to plan their first Christmas party in three years where COVID-19 is not a significant factor.

Christmas parties offer a good opportunity to connect with your staff away from the office and celebrate the year’s achievements. However, it is important that employers recognize and protect themselves from the potential liability that can arise including in the form of worker’s compensation claims and sexual harassment and/or discrimination complaints.

First and foremost, it is important to remember that Christmas parties are still considered part of the workplace. This means that an employer will typically be liable even if the party is held outside work premises and outside of work hours. An employer needs to be able to show that all reasonable precautions were taken to prevent untoward incidents.

Employers should also consider the risk of negligence claims from third parties, including from family members of employees and members of the public who interact with attendees of your event.

Below are some tips that employers can utilize to minimize their liability:

  • Ensure that alcohol is served responsibly. Whilst there is no need to ban alcohol completely, it is important that employers ensure that adequate steps are taken to prevent potential anti-social behavior. The Fair Work Commission in McDaid v Future and Communication Pty Ltd [2016] FWC 343 found that employers can be liable for the drunk behavior of employees.
  • Designate someone to supervise conduct and prevent incidents before they happen.  This does not have to be the ‘fun police’, it could be as simple as appointing a sober senior staff member to watch out for safety hazards such as wet floors and broken glass.
  • Remind your employees before the event that any codes of conduct and standards of behavior that would be expected in the office are expected at the Christmas party. It is important to explain to employees that just because the event is outside of normal work hours and away from the office, that the Christmas party is still an extension of the workplace.
  • Set a start and finish time to your Christmas party. Communicate to employees that any events occurring before or after the official event are not endorsed by the company.

Before you decide that hosting an office Christmas party is far too risky, it is important to remember that your liability is not unlimited. According to the High Court case of Comcare v PVYM [2013] HCA 41, an employer’s duty of care ceases when an employee is deemed to be on a “frolic of their own”. This happens when an employee’s actions do not correspond with what the employer induced or encouraged.

Providing a safe environment for your staff does not make you the Grinch! However, employers should ensure they have the necessary policies and procedures in place to avoid any unwanted legal surprises during the festive season. 

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