December 2006

Celebrations turned sour - sexual harrassment at the workplace Christmas party

Last year we tested you with a light hearted quiz on some potential problems arising from the annual staff party. As the festive season is fast approaching we thought it might be helpful to revisit this area.

The following scenario, with names changed to protect the guilty, illustrates the countless liabilities that may arise from a seemingly harmless staff celebration.

On Friday night Widget Industries hosts it annual staff party at a trendy new restaurant in Bronte. Almost every staff member attends with the usual speeches, novelty awards and dancing to occupy the night. It's the best party ever. At the end of the night most people head home whilst a few go into the city to continue their night of celebrations.

Meanwhile a few of the junior staff walk to their Manager, Simon's apartment, just up the road from the restaurant. In the early hours of the morning everyone leaves Simon's apartment except for Kelly, who is too drunk to make her way home. Simon then makes unwelcome sexual advances towards Kelly and she immediately leaves the apartment. Kelly is distraught from her experience and she complains to the general manager first thing on Monday.

Also on Monday morning Rachel tells the general manager that at the party her supervisor said to her in front of several colleagues "You need to lighten up a bit. A good roll in the hay would sort you out". Rachel tells the general manager that although she laughed along at the time she felt hurt, embarrassed and humiliated by the comment.

The general manager now regrets ever hosting the staff party in the first place. She wonders what she could have done differently before the party and what to do now with the complaints.

Sexual harassment

Sexual harassment is unwelcome conduct of a sexual nature that a reasonable person would find offensive. Conduct of a sexual nature is self explanatory. Some examples are:

  • Physical touching

  • Offensive jokes

  • Offensive comments about someone's body

  • Offensive gestures

  • Requests for sex

  • Crude conversations

  • Display of pornographic material

  • Inappropriate eye contact

  • Asking questions about someone's love life

The conduct is unlawful if it is unwelcome, but it is not always easy to judge whether the conduct is welcome or not. Just because Rachel laughed at the time the comment was made does not mean that she was not offended.

Employers may be liable for the sexual harassment of one employee carried out by another employee at a work related function. However where an employer has taken all reasonable steps to prevent the sexual harassment they will not be liable.

To avoid liability resulting from a staff party, other work functions and the workplace in general it is important to have a sexual harassment policy. You should also take steps to ensure staff are aware of the policy and how to complain and also show that you are serious about enforcing the policy. In the above scenario a simple memo to all staff before the party could have made staff aware of their obligations when attending work functions and the kinds of behaviour that would be considered unacceptable.

Investigating complaints

Complaints about sexual harassment should never be ignored. They should be investigated in accordance with your grievance policy. The Western Australian Industrial Appeal Court decided a case very similar to Kelly's scenario. The Court said that it was proper and necessary for the employer to investigate the alleged misconduct, even though it had taken place after an out of hours social gathering; the allegations might tend to diminish the manager's status, authority and influence at work in the eyes of those junior to him, thereby affecting his fitness to carry out his duties.

Practical tips for employers

You can take some simple steps to significantly reduce your liability before hosting the party:

  • Make staff aware of your sexual harassment policy before the event. If you do not have a sexual harassment policy, you should develop and implement one. Staff should also be made aware that the party is still a work function and they should act accordingly.

  • A policy on its own isn't sufficient. It needs to be adopted and enforced by the employer by actions, not just by paying lip-service to it. All employees need to be aware of what constitutes acceptable and unacceptable behaviour, and senior management needs to lead by example.

  • Supervise the consumption of alcohol at the party. You don't need to be a party pooper, but asking a supervising manager to stay sober is a good idea.

  • Make sure you plan the party responsibly. The location, venue, catering and post-party arrangements can have an impact.

  • Ensure your staff are aware of the official finishing time of the party, and consider how they will get home. Consider providing cab charges or even hiring a bus for the trip home. If they choose to party on afterwards, it should be made clear that this is now on their own time, and is not a continuation of a work sponsored function.

Have fun and see you next year!

Author: Mark Paul

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