All I want for Christmas … is protection from legal liability

10 December 2018

With the festive season upon us, it is a good time for employers to communicate those important messages to their employees about Christmas parties and arrangements over the Christmas/New Year period.

Here are our tips to ensure the festive season kicks off without a hitch for everyone.

Christmas Parties

Office Christmas parties are a time for merry-making, celebration and reflection on the year that was. However, employers can be left with quite the headache if things go awry. Employers need to navigate the legal minefields scattered through the festive season.

The laws that apply in the workplace generally also apply to Christmas functions. Policies that cover discrimination, workplace harassment and sexual harassment still apply, and should be enforced for workplace functions and events. Responsible service of alcohol policies must be followed and employers have an obligation to prevent discrimination, harassment and bullying actions. Employers need to take steps to ensure the safety of their employees and protect themselves against vicarious liability for the transgressions of staff.

Employers, due to the connection between the workplace and the function, may be held vicariously liable for the actions of employees, even if the party is held outside of the workplace and outside of work hours. Injuries that occur at Christmas parties may also be the subject of a worker still compensation claim.

At the risk of being known as the “Grinch who Stole Christmas”, the following steps should be taken by employers to ensure the Christmas party is a safe and fun event for all:

  • Employers should have clear and compliant policies in relation to bullying, sexual harassment and consumption of alcohol;
  • Employees should be reminded that the event is still a work event and they must still abide by company policies. An all-office memo prior to the event (with links to relevant policies) is a friendly way to remind employees of behaviours expected of them;
  • Ensure that company policies are up to date and are clearly communicated to employees;
  • Employers should emphasise that actions prohibited within the workplace will not be tolerated and breaches of policies may result in disciplinary action;
  • Ensure that alcohol is served responsibly;
  • Provide clear ‘start’ and ‘finish’ times; and
  • Provide employees with information regarding available transport options, to ensure that they arrive at and depart from the event safely.
A time for rest and relaxation… mostly

It is not uncommon for employees to want time off over the Christmas/New Year period and some workplaces temporarily closedown.

It is also common for employers in certain industries (for example retail) to implement a block-out period where employees are unable to take leave. This block-out period usually reflects a peak sales period.

We outline below some risks and common practices to ensure that employees are aware of the leave expectations over this period.

Christmas shut-down

The terms of an industrial instrument, either a modern award or an enterprise agreement, may permit an employer to require employees to take annual leave during any Christmas shutdown period. Any requirement to take annual leave must be reasonable and employers must comply with notice requirements under the applicable industrial agreement.

The Fair Work Act 2009 (Cth) (Act) specifies that a requirement to take annual leave must be reasonable. Industrial instruments may also set out the minimum period of notice that must be provided to an employee if the business is to shutdown over the Christmas/New Year period. It is important to be aware of the applicable notice period that applies to your business as these can vary depending on the industrial instrument. For example, the Clerks-Private Sector Award 2010 requires that 4 weeks notice in writing must be provided.

Leave block-outs

If a block-out period is to be implemented that prevents employees from accessing periods of annual leave, care should be taken. This is because an employee is entitled to access annual leave and an employer must not unreasonably refuse such a request. Recently, the Fair Work Commission (FWC) dealt with the refusal of an employer to grant leave during the Easter holiday period. The FWC stated that matters such as the nature and size of the employer’s business operations should be considered.

The need for employers to be proactive when dealing with any block-out period and requests for leave was emphasised. Ultimately, the FWC decided that the employer had been untimely in responding to the request for leave, which gave the employee a reasonable expectation that the request would not be refused.

Best practice

When implementing either a Christmas shutdown or a leave block-out, as a matter of best practice, employers should ensure that:

  • The period of the shut down or block out is clearly noted in the leave policy of the company;
  • The shutdown or block-out is permitted by the relevant industrial instrument and the Act;
  • Requests for leave during a block-out are not unreasonably refused and are dealt with in a timely manner, and that any requirement to take leave during a period of shut-down is reasonable. When assessing these, keep in mind the following factors:
    • the needs of the employee and the needs of the business;
    • any agreement with employees;
    • the custom and practice of the business;
    • the timing of the requirement to take leave or the request for leave during a block-out;
    • the business’ past practices; and
    • the reasonableness of the period of notice given.
  • Finally, employers should communicate any policy on leave during the Christmas period to staff prior to Christmas via an all-office memo or email.

Careful consideration also needs to be given to what should occur where an employee has insufficient accrued annual leave. An employer may allow an employee to take annual leave in advance, take unpaid leave or a combination of both. These choices will need to be discussed with and agreed with relevant employees.

Lessons for employers

Christmas is a time for celebration and rest. Do not let legal matters spoil the fun. Employers should ensure that they have the necessary policies and procedures in place to reduce the risks associated with Christmas festivities and ensuring appropriate staffing levels over the Christmas period. A few simple proactive steps may avoid an unwanted New Year legal surprise!

This article was written by Sarah Sealy, Partner and Frances Spry, Associate.

Sarah Sealy

P: +61 3 6210 6216


Subscribe to HWL Ebsworth Publications and Events

HWL Ebsworth regularly publishes articles and newsletters to keep our clients up to date on the latest legal developments and what this means for your business.

To receive these updates via email, please complete the subscription form and indicate which areas of law you would like to receive information on.

Contact us