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Out-of-hours conduct can often become ‘work-related’, creating a risk for employers. This is increasingly important with the ‘silly season’ approaching. Here are our top tips for planning your Christmas function.

What’s the Risk?

Christmas parties and other work-related functions often see mismanagement of industrial relations issues that would otherwise be carefully considered by managers or, managers do not understand that sometimes misconduct that occurs after the official function may still be work-related. Failure to manage misconduct that occurs at work functions, such as harassment, can create a culture of tolerance or acceptance, or expose the employer to a breach of its duties under safety legislation. It can also be used as evidence of unfairness if the same conduct occurs at the workplace later and is managed inconsistently.

On the other hand, employers sometimes over-react to misconduct that occurs at a work function. This can expose the employer to risk of successful unfair dismissal claims on the basis that there was no valid reason because, for example, the matter was not investigated thoroughly, the conduct was not misconduct, or the conduct was not sufficiently connected to work. Even if there is a valid reason, the dismissal may be rendered harsh because the employer did not take steps to manage the function appropriately in the first place.

In addition, an employer can also be vicariously liable for the unlawful acts or omissions of employees – such as harassment – that occur in the course of their employment, which can include acts committed at work functions. An employer is not vicariously liable where they can establish that ‘reasonable steps’ had been taken to prevent the unlawful act or omission from occurring.

When can you manage out-of-hours conduct?

Where there is a sufficient connection to employment and the actions of employees have the potential to damage the employment relationship or the employer’s reputation/brand, an employer can investigate the out of hours conduct of its employees (including work-related functions, use of social media, etc.) and manage accordingly. Employers should have clear policies to deal with the issue at hand, ensure that relevant personnel are educated and understand those policies and, importantly, must manage all non-compliance issues accordingly.

Top Tips for planning your function

Be prepared. Proper management of out-of-hours conduct starts before the conduct occurs. Here are our top tips for planning your function to minimise the risks to your business.

1. Check that your insurance policy covers Christmas party activities.
2. Outline clear start and finish times.
3. Select a venue that employees will have to vacate at the end of the function – ensure a clear distinction between the function and private time.
4. Ensure that plenty of food and non-alcoholic drinks are provided.
5. Ensure that employees who are minors will not be supplied with alcohol.
6. Ensure waiting staff are briefed in relation to the responsible service of alcohol.
7. Assist employees with planning how to get home, ie small gifts for designated drivers, provision of cab charges to employees, organising a mini-bus, or holding the event in a location close to public transport.
8. Ensure that employees are aware of company expectations leading up to the event, specifically sexual harassment, bullying, discrimination, drug and alcohol use, conduct, and confidentiality. Consolidate policies through training and awareness.
9. Conduct a risk assessment of the facility. Be aware of access and egress, and designate an emergency meeting point.
10. Provide a generic function letter/memo for employees.

Your letter (tip no. 10) should include the start and finish time of the function, the expected behaviour at function and the application of policies/policy breaches, and details about drink driving/cab-charges/public transport, and the emergency meeting point.

Require further information/assistance?

If you require further information or advice, please contact one of our Consultants.

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