As the year draws to a close and festive cheer begins to spread, the many potential pitfalls of the silly season workplace social calendar are once again rearing their heads. But there are steps you can take to avoid your workplace social functions turning into ‘Christ-messes’…

Like the three wise men, we bear three gifts for you below: three handy tips for keeping your silly season social functions stress free.

Tip 1: Be careful with the liquid gold

Ensuring your event is a HR success starts with good, thorough preparation. And when it comes to alcohol, you will always need to tread carefully…

Ensure control and assign responsibility

If your event is going to involve alcohol, ensure the venue follows responsible service of alcohol protocols. Having a quick, quiet word to the bar staff to let them know that they can say ‘no’ to Barry from accounts if he is getting out of control can go a long way.

Further, ensuring someone in management is responsible for the event and serves as the contact for the venue can help to de-escalate any problems. Even when a venue is responsible for the service of alcohol, case law suggests best practice is to have someone with managerial authority in charge of supervising the function.

From a practical point of view, it is always advisable to also serve non-alcoholic drinks and a good amount of food.

Avoid self service

Allowing alcohol to be self-served is always risky.[1] Even if your event is at the office or a private venue, spend the extra cash and get wait staff to serve drinks. This will help you monitor how much everyone is drinking and allow you to cut someone off before things get messy if necessary. Hey, the wait staff may also offer to do the dishes for you!

While employees who choose to drink can be held accountable for their own actions, an employer that provides alcohol at a work function (whether self-served or not) and takes no steps to ensure it is consumed responsibly may be culpable for events attributed to the consumption of alcohol, such as a drunken employee falling down the stairs.

Keep in mind that drinking may be an explanation for bad behaviour, such as a physical altercation with a colleague or sexual harassment, but it will not be found to be an excuse.[2]

Don’t be afraid to cut someone’s night short

If someone is enjoying the drinks too much, it may be appropriate to cut them off from further consumption or send them home (in a safe way). Remember that if there is debate about whether an employer took appropriate steps to manage a situation, the Fair Work Commission and other tribunals or courts will often consider positive actions (such as cutting someone off or asking them to leave) as helpful in establishing that the employer took reasonable steps. A refusal by an employee to leave when directed to may in itself be sufficient grounds for dismissal.[3]

Prior to your event, don’t forget to remind employees that your company’s policies and standards still apply at the Christmas function, and that any rude-olph behaviour will not be tolerated.

Tip 2: Consider the myrrh-ky line between employment and the after party

Where an incident occurs (i.e.at an official function or at an after party) will be relevant to whether the employer has liability for it and whether the employee’s conduct can be the basis for disciplinary action.

Make start and finish times clear

Setting the boundaries of your event by making the start and finish times clear (either by calendar invite or in an email) can be the first step in limiting what the employer will be responsible for.

Additionally, ensuring the venue makes it clear when the party or tab is over can be another step towards successfully defending any potential claims. An announcement can be made by bar staff or a manager when the party is over, and you should also consider mentioning safe ways employees can get home. Keep in mind however, that the end of food and alcohol paid for by the employer may not always indicate that the work function, and therefore liability, has ended – particularly if employees hang around at the venue.[4]

Monitor any pre-parties

You should consider what employees might be doing before the official party starts. Teams holding long pre-party lunches or pre-drinks can lead to employees being several eggnogs down before they even arrive. Ensuring managers monitor this, and having security at the door refusing entry to those who are already intoxicated, may assist. If someone is refused entry, ensure you have let security know the steps you would like them to take (such as making sure they get in a cab or letting the employee’s manager know).

Be aware of after parties

If an incident occurs after the official event at an after party, you will need to consider if there is a sufficient nexus between the conduct and the employment relationship to justify disciplinary action or termination. While it will be many shades of grey, if the conduct in question is not connected with the employment because it was not ‘organised, authorised, proposed or induced’ by the employer, it may not be appropriate to discipline or terminate the employee because of the conduct.[5]

This will also depend on the circumstances. It has previously been held that conduct (including telling a co-worker that their ‘mission for the night is to find out what colour knickers you have on’) upstairs at the same venue as the work party, and at the cab rank later on, was not within employment.[6] In this case, the company dismissed the employee for the conduct and it was ultimately found the dismissal was unfair. However, in another case, conduct in the taxi on the way home from the staff party (which included a manager threatening to inappropriately touch a female colleague if she did not stop talking) was held to be within employment, and therefore formed a valid reason for dismissal.[7]

Keep watch on online activity

In the digital age, even Santa can’t resist a selfie. Make sure your company’s social media policy is up-to-date (and includes guidelines on posting photos from work events), and remember that this will be another area in which determining what is or isn’t within the employment relationship will be complicated (perhaps even more so than navigating the Boxing Day sales!).

Giving employees a gentle reminder that they should treat each other with respect, in person and online, can go a long way towards helping people remember their manners. Also, if you have a particularly snap-happy workforce, consider holding some training about appropriate online conduct before the event.

While the strategies we’ve outlined above may help, case law ultimately shows that in some circumstances, incidents that occur after the lights go out and the event is officially over may still be within the employment relationship.

The guiding principle from the leading case of Rose v Telstra[8] remains that to justify a dismissal where the event took place out of hours or outside of normal work activities, the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.

Make sure you keep this in mind when determining if an employee should be disciplined for their conduct.

Tip 3: You don’t need frankincense, just use your common-sense!

If anything inappropriate does occur at your event, snap into action straight away.

Investigate any incidents promptly

Follow your normal procedures and don’t wait for January to start an investigation into an incident. For example, if it is relevant to look at security camera footage, ask the venue for it promptly, as such footage is often only held for a short time. If you deal with issues quickly, it will be easier to gather the necessary facts.

If your company is in shut down over the Christmas period, it may still be necessary that a skeleton staff from HR is available to deal with any issues that arise. If key witnesses are away, make sure the issues are followed up as soon as possible and all those involved are updated on the reasons for any potential delays. Ensure support is given to any alleged victims or complainants. If you hear of bad behaviour through the grapevine, don’t wait for a formal complaint to start looking into the issue.

Despite everything we’ve outlined above, there’s no need to be a Grinch! When it comes time for your workplace Christmas function, just make sure you keep these three tips in mind, and ultimately, remind employees it is still a workplace and they should save the inappropriate behaviour for Christmas dinner with the in-laws.