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Christmas party / year-end season and sexual harassment claims

It’s that time of the season – year-end parties are upon us. Year-end parties provide staff and clients with a great opportunity to interact in a relaxed social environment without the constraints of work. Employers often put a lot of time and expense into these events to make it a memorable occasion.

But beware – the year-end party can be a legal minefield!

As we are approaching the end of the year with all the year-end functions, employers need to brace themselves to face possible sexual harassment claims that are common following end of year celebrations. Employers are increasingly being held liable for the actions of their employees if they cannot establish that they have taken reasonable steps to prevent harassment occurring irrespective of whether it occurs at the workplace or off-site. Reasonable steps mean pro-active, preventative measures. Lack of awareness that the harassment was occurring is not in itself a defence.

An employer’s liability also extends to the serving of alcohol. Just as restaurants and bars are not allowed to serve drunk people, nor are employers. Occupational safety and health legislation require employers make provisions for the safety of their employees, and this obligation does not stop at the work year-end party.

The responsibility of the employer extends to ensuring that staff return home safely, after having hosted a work function at which large amounts of alcohol are served. This responsibility is heightened at year-end party time where taxis are scarce, queues are long, people are tired and frustrated and situations can boil over quickly.

Claims under the Sex Discrimination Act 1984 (Cth) or the Equal Opportunity Act 1984 (WA) can be very costly for an employer. In addition, the emotional and financial toll of having key employees embroiled in litigation is also a concern, not to mention the possibility of unfavourable media attention.

So what is sexual harassment then? Sexual harassment is the unwelcome conduct of a sexual nature which would reasonably be expected to offend or humiliate a person. Sexual harassment can be a one-off event and is not limited to the actual workplace – it can take place at work functions. One employee getting a little too merry at the work year-end party is sufficient to get the employer into a lot of trouble. However, mutual, invited or reciprocated sexual interaction, flirtation, attraction or friendship between colleagues is not sexual harassment.

Some examples of sexual harassment include:

  • unwelcome touching, hugging or kissing;
  • staring or leering;
  • suggestive comments or jokes;
  • unwanted invitations to go out on dates or requests for sex;
  • intrusive questions about an employee’s private life or body;
  • unnecessary familiarity, such as deliberately brushing up against someone;
  • insults or taunts of a sexual nature; and
  • sexually explicit emails or SMS messages.

What should an employer do?

It should:

  • ensure it has an appropriate policy that covers harassment, including sexual harassment, and an effective complaints/grievance resolution procedure;
  • effectively communicate the policy to all employees in advance of the party;
  • serve alcohol responsibly, such as serving full and half strength beer, and provide plenty of water and soft drinks;
  • ensure adequate supply of food;
  • encourage appropriate conduct by management;
  • consider a general policy on alcohol consumption at work functions;
  • make sure your clients are aware of your policy if they attend;
  • consider arranging transport home or holding functions close to public transport; and
  • take appropriate remedial action if sexual harassment does occur.

Is there anything the employer should not do?

An employer should not assume that it is immune from a complaint. Staff will not write off inappropriate or harassing behaviour as a “one-off” due to excessive alcohol consumption or “because it’s year-end”. Employers need to ensure that all staff are made aware of what is expected of them and what will and will not be tolerated.

A general awareness of anything in the nature of a complaint, even if not reduced to writing, is sufficient for an employer to take action.

Is it worth all the effort?

In an increasingly litigious work environment, some employers may be tempted to cancel their celebratory event because they believe it may not be worth the effort. It still is, but a few simple precautions will ensure that you can approach the New Year with a sense of hope, not trepidation.