Have a very Merry COVID Christmas

Restrictions are easing around the country, just in time for the festive season. However, it is unlikely that festive celebrations will look like the type of parties we were used to before COVID appeared.

The COVID-19 pandemic has changed the way we gather, with government-imposed restrictions on social gatherings, the operations of business premises and travel. The changes that COVID has brought to the way we interact with our fellow workers has been managed quite effectively by many employers by staggering start times, changing workplace layouts and transitioning employees to working from home where possible.

A number of workplaces have benefited from the flexibility these new arrangements have presented, but with Christmas around the corner it is time to reflect on the impact the restrictions will have in an environment that is the opposite of social distancing … the work Christmas party.

What will the Christmas party really look like?

Given the increased risk of transmission of the virus indoors, particularly in venues where food and alcohol are consumed, it is possible that many businesses will choose to have their Christmas party outside and during the day, to minimise their risks. Some may even conduct virtual Christmas parties.

Each state government is updating their COVID management plans regularly and it is important that you consider your state’s plan when you are organising your event and again directly before it happens.

A virtual Christmas party? Is that a thing?

Yes, a virtual Christmas party is a thing! COVID has made us quite adept at online work conferences, meetings and Friday night drinks so it is possible that we will see some workplace Christmas parties happen online this year. An alternative for employers to consider, may be to hold a small workplace gathering and give employees the option of dialling in on a video call so they can share the workplace Christmas spirit from home. However, consider if your team (and organisation) would benefit from the personal touch within the social distancing limits. Everyone is feeling a bit COVID fatigued and the opportunity to gather safely may be the tonic they need.

Regardless of whether your staff are partying in their home during work time or at a work event, you still need to consider the risks arising from their behaviour at your work Christmas party. The liability of employers for the actions of their employees extends to work functions, so it is important to ensure all staff understand safe alcohol consumption, compliance with COVID restrictions and there can be no workplace hi-jinks.

Work health and safety obligations

Employers have a legal responsibility to protect the health, safety and welfare of their employees when they work from home, and that includes participating in authorised work functions.

If your employees have already been working from home, you should have already conducted a risk assessment of the workspace to see if there are any potential hazards or safety risks. Your team must understand that the risk assessment extends to work social activities and they must make sure any hazards are removed (particularly coffee tables and glass items that won’t survive the ‘Nutbush’ or ‘macarena’) before they join the celebrations.

Inevitably, alcohol combined with a party atmosphere increases the likelihood of accidents, and the problem with online events is there is no-one to practically ensure responsible service of alcohol in the employee's home. Businesses must be mindful of their responsibility to their workers, and in order to avoid the risk of employees causing harm to themselves (or others) both during and after the function, it may be best practice to make the Christmas party a dry event.

However, if you are permitting employees to drink during an online Christmas party, it is suggested that you consider:

• having the function during the day;
• whether or not partners and children are also invited to attend;
• nominating a specific start and finish time for the function;
• confirming any actual or online parties facilitated by staff before, during, or after those times are not approved by the business;
• not permitting any dancing or physical games.

For small functions, we suggest that you have a designated moderator who is not drinking and is able to "keep an eye" on employees' behaviour online. The moderator should have administrator functionality over the online platform in use for the party, the ability to mute participants and, if necessary, remove attendees from the session. Shift the focus from the consumption of alcohol and schedule non-drinking activities to take place during the party. You may like to organise for food delivery to the homes of attendees, so everyone gets to enjoy a similar experience.

It is important that you confirm the address of where employees will be located for the online Christmas party, and ensure the moderator is provided with rapid access to those details should an emergency occur.

Bullying and discrimination

In addition to commonly understood work health and safety (WHS) obligations, businesses need to be vigilant in preventing bullying, sexual harassment or other forms of discrimination that can occur (for example: derogatory or sexually explicit comments made about a person that the employee says was "just a joke") at the Christmas party. Remember, the person who defines whether a comment is offensive is the person who receives it.

In a relaxed environment, employees may be more inclined to make inappropriate statements about other workers. It is important to remind all workers that they are still at work, and the same conduct standard is required during a function as when they are at work. Inappropriate comments and conduct (such as obscene gestures) must not be tolerated by an employer.

A failure to take steps to manage the risk of workplace bullying, discriminatory or sexually harassing conduct can result in a contravention of anti-bullying laws in the Fair Work Act 2009 (Cth), WHS laws, and state and federal discrimination laws. In some circumstances your organisation as the business could be held directly liable for the discriminatory conduct or unlawful sexual harassment of an employee. However, where an employer has taken all reasonable steps to prevent the conduct, they may have a defence to a claim.

It is important to remember that complaints about bullying, discrimination and sexual harassment should never be ignored. They should be investigated promptly and in accordance with your grievance or other applicable policy.

Tips for a successful Christmas party

1. Remind employees in advance of the Christmas party that it is an extension of the workplace, and inappropriate behaviour may lead to disciplinary action being taken in the same way it would as if it took place during work hours.
2. Also, remind employees that workplace policies continue to apply to employees in the way they would for any other work function, including policies setting out the expected standards of behaviour of employees and policies relating to conduct in the workplace, and computer use for anyone attending virtually.
3. Provide employees with information on how to stay safe while attending the Christmas party, including responsible alcohol intake, ensuring they have considered any hazards (such as trip hazards or small children) in the environment if they intend to join the online party, and providing the employer with up-to-date information on their location.
4. Make sure your organisation's Sexual Harassment, Bullying and Discrimination Policy specifically covers employee behaviour at social functions and out-of-hours conduct where such conduct has a connection to the workplace, and that employees are reminded of its applicability to online events.
5. Ensure your organisation's policies relating to use of the organisation's IT resources and network, and workplace surveillance, cover any current or new resources or online platforms proposed for the online Christmas party.
6. Refresh staff on your Social Media Policy to ensure that inappropriate photos, videos, or comments are not taken, made and/or posted online during or after the party.
7. Have a complaints policy and procedure for dealing with any complaints promptly and in the appropriate manner.
8. Consider potential issues or emergencies that may arise and develop plans or procedures to respond to those issues or emergencies. Ensure that those employees who are responsible for the smooth running of the Christmas party are aware of those plans or procedures, have been trained in them (if necessary) and have the equipment or means necessary to implement the plan or procedure.

Most of these points will also be relevant for in-person events as well. And most importantly of all, have a safe and happy festive season from everyone at Active Law.

If you need assistance in planning to avoid risks in your workplace during the festive season, contact us on (07) 3160 0000 or email us at reception@activelaw.com.au.

Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not and is not intended to be, legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.