The holiday season can bring festive cheer to the workplace, and an opportunity to relax and celebrate with your teams. But it is also rife with legal challenges for employers and HR professionals.
Still a workplace
Despite their casual settings, it’s important to remember parties are extensions of the workplace — and this is true regardless of where the party is held.
“It doesn’t matter if it’s a restaurant or the office. If it’s a company event, there could be a liability,” said Hum.
It also means all the usual rules for employers are in place. The fact the party might be after-hours, or off-site, doesn’t change anything for organizations.
“Employers have an obligation to ensure a safe and harassment-free workplace,” she said.
Two main risks
The biggest areas of concern are impairment and sexual harassment, according to Hum.
“It’s the alcohol consumption, but also the conduct of the people once they consume alcohol,” she said. “It tends to create an environment where harassment can take place. People are loosened up and they might do things that they normally wouldn’t do.”
While the message to employees should be that it’s a celebration, and it’s supposed to be fun, it’s still a workplace event, she said.
“They would be expected to conduct themselves appropriately and professionally,” said Hum.
The Hunt case
Hum talked about the landmark 2001 Ontario case involving Linda Hunt and her employer, Sutton Group Realty, that serves as a cautionary tale.
Hunt consumed alcohol at a company-sponsored holiday party and went to a nearby bar where she continued to drink. She later attempted to drive home and got into a serious accident. An Ontario court found her employer partially liable with damages in the $300,000 range.
“(The employer) ought to have foreseen that by maintaining an open and unsupervised bar, he would be incapable of monitoring the alcohol consumption of his employee, which led her into the danger in question,” wrote Justice Marchand of the Ontario Superior Court of Justice. See Hunt v. Sutton Group Incentive Realty Inc., 2001 CanLII 28027 (ON SC).
There was also an infamous party following the merger of two big law firms in New York and Toronto, she said. It wasn’t a holiday party, but it offers lessons on what can happen not just from a corporate liability perspective but also through a career lens, she said.
“It was a celebration of the merger and one of the partners drank a lot and then sexually harassed a number of the female partners,” said Hum. “It was a career-ending move.”
Mitigating the risks
There are a number of things employers can do to mitigate the risks around holiday parties, said Hum. That includes:
Monitoring and moderation: Employers should have designated individuals to monitor alcohol consumption and behaviour. “These people should not drink,” said Hum.
Controlled consumption: Implementing measures like drink tickets can help regulate alcohol intake and set an expectation that only one or two drinks should be consumed.
Safe transportation: Providing taxi or Uber rides post-event can prevent impaired driving. Messaging should be sent in advance and staff should be reminded as the event wraps up.
Avoiding after-parties: While employers can’t stop staff from continuing the party elsewhere, they can make it clear that the holiday party is over and there aren’t any official or unofficial after-parties sanctioned by the company.
Communicate in advance: It’s important to remember that it’s a party, and should be fun, but it’s also OK to set expectations ahead of time about the type of behaviour that is required and expected.
Responding to an incident
If someone’s behaviour does start to go off the rails, it’s important to intervene quickly, she said. The first step is to take them aside and stop the drinking.
“You could send them home if needed. Remember, it’s a party sponsored by the employer — so you can and should take steps to stop that behaviour,” said Hum.
If there is an incident of sexual harassment, it needs to be taken very seriously. It’s important to remember that there doesn’t need to be a formal complaint — if the employer witnesses it, or becomes aware of it, the obligation kicks in, she said.
Employees are often afraid to report harassment so Hum said it’s critical for employers to create an environment where people feel safe to bring it to management’s attention as soon as possible.
“Whether it’s drinking too much or being unprofessional or if they’ve witnessed any sexual harassment,” she said. “That could be part of your pre-party messaging as well. You don’t want to make it a real downer, you may not wish it to be all about liability, but you could add in something that says if there are any concerns, this is who you should get in touch with.”
Hum is seeing more employers going alcohol free, and not just because of liability concerns.
“Calling it a holiday party, versus a Christmas party, and not having alcohol would make it perhaps a bit more inviting and welcoming to people who don’t drink alcohol, either for religious reasons or otherwise,” she said.
Attendance at holiday parties should also be optional, she said.
“Don’t make it mandatory attendance,” said Hum. “Making it mandatory risks having employees claim that they should be paid for the event.”
Hum certainly encourages holiday parties as a way for employers to celebrate with their teams. She wishes all happy holidays, and adds that following these precautions is not difficult, and should not dampen the holiday spirit.