As the working year winds down with the annual Christmas party, managers need to prepare before the celebrations begin to protect employees from sexual harassment.
Charisse Gray outlines the reasonable steps managers are expected to take to ensure the workplace is safe: before, during and after the party.
The office Christmas party is a traditional way for employers to reward employees for their hard work throughout the year, allowing staff to bond, wind down, socialise, and have a drink or two to celebrate the festive season. But managers must be aware of the possible dangers in this combination of alcohol and high spirits in a social setting, and guard against sexual harassment spoiling the party.
As Jane Seymour, partner for Australian Business Lawyers explains, an employer’s responsibility to guard against sexual harassment extends beyond the strict confines of the workplace. "Work functions are covered by sexual harassment laws and the employer may be liable for sexual harassment occurring at the office Christmas party unless they can show they took ‘all reasonable steps’ to prevent sexual harassment from occurring."
What is sexual harassment? The law defines it as unwelcome conduct of a sexual nature that a reasonable person would expect to offend, humiliate, or intimidate. It is important to recognise that the legal test for sexual harassment does not consider an individual perpetrator’s view of appropriate behaviour. The legal test considers the view of the ‘reasonable person’ and may depart from any one individual’s beliefs or values.
Common examples of sexual harassment include:
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• physical contact
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• suggestive comments/sexual propositions
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• leering/staring
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• unwelcome inquiries into a person’s private life
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• persistent unwanted requests to go out
Sexual harassment is not consensual behaviour. There is no excuse for managers to ignore incidents of sexual harassment. If serious enough, sexual harassment may become a matter of criminal law, including sexual assault. Even if unwelcome conduct does not breach the criminal law, a serious breach of sexual harassment laws may occur. Sexual harassment may also constitute a breach of Occupational Health and Safety laws, as a failure to provide a workplace free from risks to an employee’s mental and emotional as well as physical well-being.
Reasonable Steps
So, what can an employer do? Seymour explains: "Employers should take ‘all reasonable steps’ to prevent harassment from occurring at the staff Christmas party. This includes the trip home.
"Reasonable steps include having a comprehensive policy and complaints procedure in place, training employees and managers, taking appropriate action to address any complaints and providing appropriate monitoring and supervision of the Christmas party by managers.
"As a matter of best practice, managers must be trained to identify sexual harassment risks, step in and manage the situation, and respond appropriately to all complaints. A sexual harassment complaint does not have to be made at the time of the alleged incident for it to be considered genuine."
At the Christmas party, employers should be alert and step in if they see a potential problem. It is up to managers to keep watch and monitor the environment. To minimise the risks of sexual harassment, employers should adhere to the following basic steps:
Before the party, communicate with employees. Consider sending a positive email to staff before the party to remind them of relevant company policies, including the sexual harassment policy. Designate some managers to stay sober in order to monitor the party to ensure any issues are promptly and properly addressed.
At the party, if alcohol is served, it should be served responsibly. A voucher system, for example, may be a useful way to limit alcohol consumption. Intoxication is not a defence to sexual harassment laws.
If you are serving alcohol, food should also be served. Low alcohol and non-alcoholic beverages should also be available. If inappropriate behaviour occurs, designated managers should take appropriate action immediately. A useful first step is raising the issue with the alleged perpetrator directly. Often the alleged perpetrator will not be aware of the effect of their behaviour and will stop immediately once they realise offence has been caused. Hopefully, this will be the end of the matter.
After the party, your responsibility as an employer extends to the trip home. Accordingly, make appropriate transport available for employees, particularly where alcohol is involved. A mini-bus or cabcharge voucher is a useful way for an employer to take reasonable steps to protect their employees.
* Charisse Gray is senior business writer with Australian Business Limited. For more information or training for employees or managers, contact Jane Seymour on (02) 9458 7497.
