The liability of an employer does not start and end at the office door. Employers should understand that their liability extends to outside events affiliated with their staff’s employment (such as employer-sponsored events, training workshops or even office parties).

Employers can be held legally responsible for acts of discrimination or harassment in the workplace or in connection with a person’s employment.

This is known as vicarious liability.

It also means that employers can be liable for acts by their employees that occur at work-related events, such as conferences, training workshops, business trips and work- related social events, such as Christmas parties. For example, in the case of Leslie v Graham [2002] FCA, an employer was found to be vicariously liable for sexual harassment in a situation where the harassment occurred
between two employees in the early hours of the morning in a serviced apartment they were sharing, while attending a work- related conference.

With workplace events approaching at the end of the year (such as office parties, lunches or even the end-of-year Christmas hurrah), you need to take all reasonable steps to minimise the risk of discrimination or harassment occurring to and by your employees during these events.

Employers owe a duty of care to their employees and must take reasonable steps to identify and reduce potential risks. The nature of workplace functions and consumption of alcohol heightens the threshold for what is required of employees to take ‘reasonable steps.’
Failing to take reasonable steps to prevent inappropriate conduct at workplace functions can result in significant liability for the employer.

To reduce risks at workplace functions, the following reasonable steps can be implemented to minimise employer liability:

WORKPLACE POLICIES

• Ensure that policies related to bullying, sexual harassment, discrimination, and work health and safety are up-to-date and accessible. All employees must receive appropriate training regarding these policies.
• Advise employees that workplace policies could apply to planned and unplanned workplace events.
• Remind employees that workplace policies will apply to behaviour at these functions even when held off-site.
• Ensure that workplace policies allow for internal complaints and properly investigate all complaints.

SET RULES AROUND ALCOHOL

• Remind employees of the dangers of excessive alcohol consumption and drunk driving.
• Remind employees that ‘Secret Santa’ gifts must be appropriate. There can be a risk of harassment or discrimination claims if gifts are inappropriate.
• Responsible service of alcohol must also be taken into account to reduce the risks of sexual harassment, bullying and accidents. Ensure that food and non-alcoholic drinks are available.
• Consider the needs of staff with dietary or cultural requirements.
• If employees become too intoxicated at a work party, they should be told to stop drinking. If necessary, they should leave the function with safe transport arranged.

EMPLOYEE SAFETY

• Ensure that the chosen venue and activities do not present inappropriate risks.
• Undertake a risk assessment of the venue to identify safety hazards.
• Set specific start and finish times for workplace functions, and note that parties following after the function are not endorsed by the employer.
• Ensure that employees can get home safely. You could provide taxi vouchers or organise a shuttle bus.
• Check your employee insurance policy to see if the function is covered.