'I'm hearing from some employers that it's not worth the risk anymore' says lawyer
Lawyer Rick Catanzariti knows of a number of employers who this year are opting out of throwing work Christmas parties. It’s a rising trend, he says, as organisations grow more nervous about not just the possibility of complications with regards to employees’ welfare, but also the potential for reputational damage.
“What I'm actually hearing from some employers is that it's not worth the risk anymore, especially with events that involve alcohol,” says Catanzariti, partner at DLA Piper. “They know that while it may be good for employees to hold celebrations, they’re concerned there's just no way of ensuring that something might not go pear-shaped.”
This is particularly of concern in the age of social media, and for employers with reasonable public profiles, he says.
“Employers are saying, ‘We just don't know whether we can actually eliminate the risks because we can say and do all the right things, but ultimately if an individual does the wrong thing anyway, are we still going to be liable? And even if we’re not liable are we still going to be dragged through publicly as a bad employer’.”
Staying compliant with positive duty
This caution comes at a time when employers move to ensure their organisations are compliant with workplace sexual harassment obligations and the new positive duty. A series of pieces of legislation have changed the obligations on employers when it comes to ensuring they have a safe workplace for their employees that is free from sexual harassment and a range of other offences related to that type of behaviour.
From 12 December 2023, the Australian Human Rights Commission will have the power to enforce compliance.
The positive duty places a requirement on businesses to take all reasonable and proportionate steps to eliminate four other types of behaviours as well as sexual harassment: sex discrimination, sex-based harassment, conduct creating a hostile workplace environment, and victimisation.
However, says Catanzariti, “Social events like Christmas parties could actually be a good way for employers to demonstrate their compliance with the positive duty.”
Demonstrating compliance with positive duty
There are a number of ways they can demonstrate this, he says.
“Making sure before functions that you're reminding employees to be familiar with the policies that apply, including those around sexual harassment and bullying, and stress that everyone is expected to comply with those even at these functions. That would also include things like any gifts that are given, because sometimes these might be inappropriate.”
If the event involves alcohol, an employer should emphasise in advance that drinking should be in moderation, Catanzariti says, and making sure that food and non-alcoholic beverages are available is crucial. It’s also important to verify that the venue understands their obligations in terms of responsible serving of alcohol, and that they’re notified if any employees are under 18 and to take steps to ensure restrictions are implemented.
A helpful development in more recent years, he says, is the trend towards employers limiting a function’s hours and making it clear to those attending what the timings are.
Precautionary measures for positive duty
“Usually what we say to employers is they need to have someone who's the responsible person whose job is to, first-of-all, not get intoxicated, but also to ensure the policies are being enforced and that people aren't doing the wrong thing.
“That nominated person needs to actively be walking around to make sure this is happening, that the alcohol stops at the nominated time, and that people leave when they’re meant to. They might be the person with the taxi vouchers and also it’s important that they make sure they check all the nooks and crannies because if there’s going to be some inappropriate behaviour it doesn't always occur on the dance floor.”
Many of these precautionary measures will have been taken even before the positive duty, he acknowledges, but their importance is further elevated now.
And employers should be mindful their responsibilities extend beyond an event held at the workplace itself.
Employer obligations extend beyond the workplace
“Generally speaking, there would be a number of factors to determine if it’s a work-related event. If it's funded by the employer, that's usually a pretty strong factor that says it's a work-related function. In that scenario anything that happens comes under the employers’ workplace policies, even if it's not at the work premises.”
In the situation where a group of employees chooses to extend the celebrations by moving on to another venue, and a harassment incident occurs, there is still a risk of it being considered work-related, warns Catanzariti.
With the positive duty, Catanzariti predicts seeing not only greater numbers of claims but also greater payouts of damages.
“I think organizations can think outside the square and ask themselves what it is they can do to create a culture that eliminates, as far as humanly possible, harassment happening in their workplace. It’s about looking at the company’s culture in a more holistic way and modelling from the top.”