Away in a Manger: Santa and the Law

Michael Michalandos and Kim Fisher
By Michael Michalandos and Kim Fisher | 4 December 2019

Michael Michalandos and Kim Fisher are lawyers with Baker McKenzie’s Consumer Goods and Retail team

It is that time of year again. Christmas. The most hectic few weeks of the year for those who dabble in the dark arts of Employment Law.

Each year there is something zanier; an idea of more interest to the Work Health and Safety Regulator. A salacious tale for a tabloid about how "Political Correctness Has Gone Mad".

Reading the news this time of year, that Human Resources (or People and Culture, as is in vogue now), devise baffling ideas to allow employees to celebrate a job well done over the year. Heaven help the Human Resources Department deciding that a Christmas party is more risk than it is worth.

There was the employer who came up with the novel idea of having their employees walk over hot coals to get to the Christmas party. Although a beer was waiting at the finish line; we are just a little wary of the idea. Whilst firewalking is novel; it could lead to a few firings and brew some trouble on foot! Not to mention the work health and safety risks associated with stressed employees, alcohol and hot stones.

Parties with a lot of alcohol held on cliffs or without a regulation balcony are also not recommended. We all know Karen from Finance can get a bit wobbly on the feet after a few Long Island Iced Teas (not a recommended drink at the Christmas party).

Another was the company that had a religious themed Christmas party. Complete with Jesus, Muhammad and Confucius. Unfortunately, although a work party may take place offsite, the usual rules in relation to harassment and religious vilification still apply.

Another big no-no is the "traffic light party", where attendees dress in red if they are taken, yellow if you are open to possibilities and green if you are single. The employer, in a moment of belated enlightenment (that is, after seeking legal advice), realised this was a bad idea and moved the party to be "rainbow themed". The initial idea was rife for a sexual harassment claim -- a big problem for employers who may be held liable for the harassing conduct of employees if they have not taken steps to stop the conduct occurring.

A general rule of thumb when organising a party is to remind staff (send out that obligatory email) that this is a "work function" and the usual policies and procedures will apply. No one likes to crack the whip, but it is prudent to tell employees that if they do misbehave they could face disciplinary action up to and including termination of employment. Having an up-to date drug and alcohol policy (which employees are reminded of prior to the event) is also a great idea. A "White Christmas" is lovely; white powder at a Christmas function is not.

Employers need to behave too. Alcohol should be served to a responsible standard (ideally with food) and safe transport options should be identified to allow employees to get home. Whilst the office party animal might be great at planning the party, they should not be in charge of the alcohol budget (and sending everyone home on public transport after the night's festivities)!

It's a good idea to appoint a few "sober Sallys or Sams" to monitor the conduct and alcohol consumption at the function and shuffle employees into cabs on the way home. The Fair Work Commission will consider the amount of alcohol supplied by the employer when evaluating an employee's conduct at a work function; remarking in the past that when plying employees with alcohol it is "entirely predictable that some individuals will consume an excessive amount and behave inappropriately".

And finally, whilst many employers like to organise activities, to celebrate and bond or to bring the party more in line with company values (yes, attempting to heed the advice above), we do have a further word of caution. Avoid "Never Have I Ever". No one needs to know embarrassing secrets about their manager and indulge in drinking games.

And a Christmas party is never the time to tell the truth about what you really think of the company, your boss or even Karen from Finance.

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