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Unwilling party to offence

LOCAL law firms have issued a reminder to employers regarding their legal responsibilities during the Christmas party period.

Although the potential for compensation claims arising from Christmas parties and work-related functions is well known, HR and IR law teams are taking steps to help employers avoid such outcomes. 

Among the points worth remembering is that compensation or sexual harassment claims are not limited to events that take place only during work hours or at the workplace.

An indiscretion at any work-related or work-sponsored event can also provide the basis for a compensation claim.

Sexual harassment claims are particularly common after the Christmas period.

In WA damages for sexual harassment claims are capped at $40,000, and while employees are liable for their actions, an employer can be held vicariously liable for the unlawful conduct of their employees or agents.

Federal claims are unlimited.

Minter Ellison lawyers have advised their clients to issue a pre-party memo or email, warning about the potential legal consequences arising from Christmas parties.

Minter Ellison HR and IR Group partner Bruno Di Girolami said a warning was important, but could also put a damper on things.

To get around this he advised that any warning should simply tell employees to enjoy themselves, but be sensible.

If an organisation had experienced past problems some general information on office party etiquette might also help.

However, Mr Di Girolami said that if an incident did occur it was important to report it to the appropriate staff member as soon as possible.

“With time delay it can be more difficult to substantiate facts, which may dilute the strength of the claim,” he said. 

Jackson MacDonald Occupational Safety and Health partner Maria Saraceni said hosting a Christmas party was more than just choosing a venue and footing the bill.

Despite the party not being at your usual place of work, injuries or harassment that occurs at Christmas parties can result in successful claims, she said.

Ms Saraceni also warned that sexual harassment claims were rife after the Christmas period.

“[It can be harassment] whether it is dirty dancing, rubbing somebody the wrong way or rude jokes and cards,” she said.

Ms Saraceni said lewd or inappropriate Christmas presents were often a real problem.

“The thing with sexual harassment is intention doesn’t count; the fact that didn’t mean to offend is not the issue,” she said.

“You might have the best intentions in the world but the impact could still offend.”

Ms Saraceni recommended businesses implement a policy against sexual harassment if they did not already have one, as well as informing employees about sexual harassment issues before the Christmas party.

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