Executed appropriately, an office Christmas party is an excellent chance to foster connections and mark the year’s accomplishments. Nevertheless, it’s crucial to be mindful of certain legal liabilities associated with these events.It’s that time of year. The ​‘Sil­ly Sea­son’. And that means that for many organ­i­sa­tions, the offi­cial employ­er Christ­mas par­ty is imminent.

The start­ing point for office Christ­mas par­ties is that they are an exten­sion of the work­place – employ­ers need to care­ful­ly bal­ance hold­ing and facil­i­tat­ing a fun event with main­tain­ing a safe, respect­ful envi­ron­ment for employees. 

Bal­anc­ing the var­i­ous risk fac­tors can be an act wor­thy of cir­cus enter­tain­ers. However, a few sen­si­ble steps can help man­age the risks of ​‘Sil­ly Sea­son’ events. 

Steps to take pri­or to the office Christmas party

1. Exam­ine the venue

There are var­i­ous fac­tors to con­sid­er in deter­min­ing the suit­abil­i­ty of a pro­posed venue.

First is the loca­tion of the venue. Be wary of venues in inac­ces­si­ble, iso­lat­ed or poten­tial­ly dan­ger­ous loca­tions – for example, hosting the event on a boat. There might be a price to be paid for the ambi­ence or nov­el­ty val­ue such venues might lend to an event. 

It’s also important to con­sid­er the addi­tion­al risks asso­ci­at­ed with the venue, such as how easy it would be for employees to get home afterwards (e.g. is it easy for them to get public transport? Will Ubers/Taxis be able to access it easily?).

Also, it’s worth asking the venue for its pol­i­cy on obtain­ing sur­veil­lance footage in case it’s need­ed for an inves­ti­ga­tion after the func­tion. (Hope­ful­ly it won’t!)

2. Ensure respon­si­ble ser­vice of alco­hol 

It’s no secret that the source of many prob­lems at work­place Christ­mas par­ties is exces­sive con­sump­tion of alcohol. It’s important to conduct a thorough risk-management assessment ahead of the party.

Check that the venue has adopt­ed respon­si­ble ser­vice of alco­hol (RSA) prin­ci­ples (the answer will almost cer­tain­ly be ‘yes’) and how those prin­ci­ples will be imple­ment­ed dur­ing the event. For example, there might be a cut-off time for alcohol service and allow­ing employ­ees to help them­selves to alco­holic drinks with­out any over­sight is ask­ing for trou­ble. There should also be plen­ty of water and non-alco­holic drinks available.

Although it will fall under the venue’s RSA obligations to serve food, it’s also important to remind the party organisers to ensure everyone is able to have a substantial meal.

3. Consider the theme: 

If you’re hav­ing a themed Christ­mas par­ty, ensure the theme is not like­ly to cause offence, exclude peo­ple or unwit­ting­ly lead to inap­pro­pri­ate or dis­crim­i­na­to­ry cos­tumes or dis­plays. Remem­ber – this is 2023, not 1983. Social norms and cul­tur­al expec­ta­tions have changed. What might once have been accept­able or uncon­tro­ver­sial might not pass muster now. 

Fur­ther, while in 2023 there appears to be a grow­ing and increas­ing­ly active back­lash to what is some­times described as ​‘woke’ cor­po­rate cul­ture, the Christ­mas par­ty theme (and con­duct of the par­ty itself) should not be an oppor­tu­ni­ty to give expres­sion or sup­port to that sen­ti­ment. 

Those organ­is­ing work­place Christ­mas par­ties should eschew any ​‘anti-woke’ theme which could be seen as a tac­it endorse­ment by the employ­er of dis­crim­i­na­to­ry or harass­ing conduct. 

4. Send a behav­iour email 

It has become a fre­quent­ly mocked cor­po­rate cliché, but an email pri­or to the event remind­ing employ­ees of the need to engage in appro­pri­ate behav­iour and com­ply with work­place poli­cies is an impor­tant step to man­age risk. 

The behav­iour expectation email has become even more impor­tant with the intro­duc­tion and imple­men­ta­tion of the pos­i­tive duty under the Sex Dis­crim­i­na­tion Act 1984 (Cth.) on employ­ers to elim­i­nate, as far as pos­si­ble, sex­u­al harass­ment in con­nec­tion with work. This duty requires employ­ers to take proac­tive steps to pre­vent sex­u­al harass­ment — the behav­iour email is an exam­ple of such a step. 

From 12 Decem­ber 2023, the Aus­tralian Human Rights Com­mis­sion has new pow­ers of inves­ti­ga­tion and enforce­ment in rela­tion to the pos­i­tive duty – just in time for many work­place Christ­mas events! 

5. Ensure COVID-19 Safe­ty 

While there still should be an assess­ment of risks aris­ing from COVID-19 (which, at the time of writ­ing, seems to be mak­ing yet anoth­er unwel­come come­back), it is high­ly unlike­ly any Christ­mas func­tions will need to be can­celled due to those risks or sig­nif­i­cant steps tak­en to active­ly man­age them. COVID-19 is large­ly under con­trol and work­place life has, for the most part, revert­ed to nor­mal. 

That said those who are unwell should be asked not to attend, giv­en that there will like­ly be a large num­ber of staff in close prox­im­i­ty at the event and there is a risk of spread­ing any infection. 

“Ide­al­ly, do not also announce any after par­ties or oth­er func­tions, because this can cre­ate an impres­sion that they are also offi­cial or autho­rised employ­er events.” – Michael Byrnes, Employment Partner at law firm Swaab

The role of the ‘responsible manager’

It’s essential that Christ­mas func­tions have at least one ​‘respon­si­ble man­ag­er’, an employ­ee who will ide­al­ly abstain from alco­hol through­out the evening (or close to it) and iden­ti­fy, mon­i­tor and address issues such asRSA by the venue, alco­hol con­sump­tion and behav­iour of staff and any safe­ty issues that might arise through­out the evening.

It’s fair to say the posi­tion of ​respon­si­ble man­ag­er, the require­ments of which sig­nif­i­cant­ly impede the employ­ee ful­ly relax­ing and enjoy­ing the func­tion, isn’t like­ly to be cov­et­ed. The posi­tion does, how­ev­er, have an impor­tant role to play in man­ag­ing the risks that can arise dur­ing the event. 

A ​‘respon­si­ble man­ag­er’ needs to be some­one in a suf­fi­cient­ly senior posi­tion with the author­i­ty and capac­i­ty to cred­i­bly deal with poten­tial­ly risky situations.

This nominated person should ensure that the RSA prin­ci­ples are observed and imple­ment­ed, which might mean liaising with the venue con­tact dur­ing the par­ty. 

An announce­ment should be made by the responsible manager when the event has for­mal­ly end­ed. Ide­al­ly, do not also announce any after par­ties or oth­er func­tions, because this can cre­ate an impres­sion that they are also offi­cial or endorsed by the  employer. 

They should then take steps to ensure atten­dees have adequate trans­port, or ready access to trans­port, to get home safe­ly after the event.

Considerations after the event 

Atten­dees should have already been made aware that work­place poli­cies apply at the Christ­mas par­ty, includ­ing poli­cies relat­ing to sex­u­al harass­ment and bul­ly­ing. Any com­plaints raised by employ­ees relat­ing to con­duct at the event should be dealt with in accor­dance with the applic­a­ble policy.

For inci­dents that occur after the par­ty offi­cial­ly con­cludes, an impor­tant thresh­old con­sid­er­a­tion might be whether the rel­e­vant incident(s) occurred at work, or whether it is a pri­vate mat­ter out­side the scope of the employ­ment rela­tion­ship. In mak­ing this assess­ment, a care­ful exam­i­na­tion of the rel­e­vant cir­cum­stances might be required.

If the com­plaint neces­si­tates an inves­ti­ga­tion, time could be of the essence. The inves­ti­ga­tor should seek to pro­cure state­ments before mem­o­ries fade and wit­ness­es go away for the Christmas/​New Year break. Ensure any nec­es­sary sur­veil­lance footage from the venue is obtained quick­ly to min­imise the prospect of it being unavail­able because it has been erased or lost.

To the degree pos­si­ble and appro­pri­ate, keep an eye on social media post­ings to ensure that the rep­u­ta­tions of the employ­er and employ­ees alike are not dam­aged by inju­di­cious posts about the function.

Media out­lets are on the look­out for cul­tur­al­ly insen­si­tive cos­tumes or per­for­mances or out­ra­geous con­duct at cor­po­rate Christ­mas par­ties for easy fes­tive sea­son con­tent. While it’s rarely either prac­ti­cal or sen­si­ble to imple­ment a pho­to or social media ban, employ­ees should be remind­ed of the employer’s social media pol­i­cy and direct­ed to ensure they com­ply with it after the event.

What not to do at an office Christmas party

Even with the best of intentions, there are a few common mistakes employers make at Christmas functions that can get in the way of the safety and enjoyment of the event. Here are some actions that HR should avoid:

1. Going rogue

Watch out for the rogue exec­u­tive (often the own­er!) who climbs onto the stage, grabs the micro­phone and gives a mes­sage to atten­dees such as, ​“Drink up. Have a great time!”. Con­sis­tent mes­sag­ing from man­age­ment is imperative. 

2. Perpetuating the vic­tim-blam­ing mes­sage 

Some work­place Christ­mas par­ty arti­cles in the past have sug­gest­ed employ­ees be asked to ‘dress mod­est­ly’ to avoid being sex­u­al­ly harassed. This is an anachro­nis­tic, coun­ter­pro­duc­tive mes­sage that seeks to shift the blame for sex­u­al harass­ment from per­pe­tra­tors to vic­tims – it’s entire­ly misconceived.

3. For­getting it’s the work­place

Employ­ees should be remind­ed that the event is not a licence to do things in the work­place that they would nev­er oth­er­wise do. A bar­rage of exple­tives direct­ed at the boss, an unwel­come propo­si­tion to anoth­er staff mem­ber, or a punch-up with a staff mem­ber they dis­like are all as unac­cept­able at the Christ­mas par­ty as they are dur­ing any nor­mal work­ing day in the office or factory.

Man­ag­ing the risk from an employ­er Christ­mas func­tion doesn’t mean you have to be the work­place Grinch. Due dili­gence, effec­tive com­mu­ni­ca­tion before the func­tion, enforc­ing appro­pri­ate con­duct dur­ing the func­tion and (if need­ed) quickly address­ing any prob­lems or com­plaints after the func­tion can ensure a suc­cess­ful event with­out an ongo­ing employ­ment lit­i­ga­tion (or rep­u­ta­ion­al) hangover.

A version of this article was originally published on the Swaab website. It has been edited and republished with permission. Michael Byrnes is a Partner at employment law firm, Swaab.

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