The nightmare before Christmas

The days are getting longer. The smell of summer is in the air. The conquest of shopping centre Muzak systems by Christmas carols is (for the next little while, at least) total and complete. Yes, Christmas is coming – but before the season of peace and goodwill to all, first must come the work Christmas party, an event at which the peace and goodwill have been known to run out long before the  grog does.

The list of cautionary tales of things which can go wrong at Christmas parties is longer than even the most overly enthusiastic child’s letter to Santa. There are difficult issues to balance – not many employers want to host “The Christmas Party with No Beer” (even if they are Slim Dusty fans) but equally, the old saying that “those for whom the wine is in, the wit is out” is not a saying known for taking holidays over Christmas.

If employees are in their own time, and away from the workplace, the employer has less control than is the case during work time, but often no less liability. There is no doubt that “the workplace” extends beyond the four corners of the office or workshop, but the question of how far it extends is not always clear.

Even judges divide on where the boundary is to be drawn, as illustrated in a leading sexual harassment case which reached the Full Court of the Federal Court of Australia. The harasser had begun to harass the victim in the office and the victim, hoping she might be safer in a public place, suggested that she and the harasser go to a hotel across the street. At the hotel, the harassment continued. Was the hotel “the workplace” of both the harasser and the victim for the purposes of the relevant section of the Sex Discrimination Act?

On the appeal, two judges held that the hotel was a workplace, because it was a place where the harasser and the victim had gone in connection with an “incident of their employment” (namely, the victim’s efforts to carry out a conversation with her harasser in a safer place than the office). The other judge disagreed, finding that the connection between the employment and the hotel had ceased for the harasser, even if not for the victim.

So, employees need to be given guidance that their conduct at the Christmas party can affect their employment, even if it is outside work hours and premises. How should this guidance be given? Most people will at some stage have seen “guidance” given in the form of an email which comes across as a none-too-subtle variant of “don’t get on the turps and grope another, you imbeciles!”; however, there is probably a better way.

Experience teaches that people are usually more receptive to workplace guidance if it is not framed as a series of pre-emptive reprimands. That means that time of year is a good time to do some refresher training on workplace policies more generally. If, in the course of general training, you can work in some reminders relevant to Christmas parties, so much the better.

At the party itself, someone senior should put their hand up to be the designated non-drinker – this person doesn’t need to be wearing a sign advertising this fact, but it is useful for other senior people to know who to alert if something goes awry. And it’s useful to give employees a message of “look out for one another” rather than a series of prescriptive “thou shalt nots” in relation to things like eating, drinking water, not drinking a whole schooner of Drambuie all at once, and so on.

And finally, if the Christmas party has all gone swimmingly, it’s probably best not to suggest that those who are still standing retire to a nearby pub for a couple of quiet tequila shots. As far as our researches have been able to reveal, no-one, in the whole of recorded human history, has ever had “a couple of quiet tequilas” – at least not without a couple of rather noisy ones very closely behind.  From that point on, the chances of a silent night, let alone a holy night, have probably been and gone.

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This is an updated version of an article originally published by HRM Online

December 5
Employment Law