Navigating fun and functions in the age of positive duty: what you need to know this holiday season

Since December 2022, employers have had a positive duty to take reasonable, proactive measures to eliminate unlawful conduct in the workplace, including sexual harassment, sex-based harassment, discrimination, hostile environments and victimisation.

That includes taking proactive measures to assess the likelihood of the behaviour occurring and then also taking active steps to prevent it. So how do you balance a fun-filled function with your obligations to provide a safe workplace for all.

The truth is these two things are not mutually exclusive! Here are five steps we think you need to take when it comes to hosting a Christmas party in the age of positive duty.

1. Start as you intend to continue

Having a workplace function policy is important, but it isn’t enough on its own. You need to be involved in making sure the real risks are identified and the rules are followed right from the start. That means doing your own due diligence on where the risks are likely to occur for any event, and what these are. For instance, alcohol consumption, venue selection (see below) and even your workplace culture will all play a part in the risk level.

If your workplace has a social committee, they shouldn’t be doing their own thing without oversight. Make sure they know their obligations and take these into account in the planning process. Also, make the committee aware that the final say is the business’s, not theirs – and so is the responsibility if something goes wrong!

2. Choose your venue wisely

Much of the risk in an end-of-year function comes down to the venue. Where do you intend to hold it? What are the risks posed by that venue? Is it open, well lit and central? How will people get to and from there? Will you provide a bus, arrange for taxis or Ubers or some other form of transport?

Make sure you do a venue walkthrough before committing, and confirm their policy on responsible service of alcohol – you don’t want to have them contributing to the potential for something to go wrong.

Finally, before you begin sending out invites, have a definite start and finish time, and make sure this is communicated to the venue as well as the attendees.

3. Be careful with the theme

It might seem harmless enough, but the theme for your end of year party can have a lot to do with the mood. Make it too risqué, and you may be inviting trouble – some employees may even see it as a licence to behave, dress or act a certain way.

Similarly, avoid any controversial or borderline offensive themes, like potentially racist, sexist or discriminating themes. You can still have fun without overstepping what’s actually reasonable.

4. Appoint people to oversee the event

I know, we’re all adults, we don’t need someone checking on us through the night to make sure we’re acting responsibly… at least we shouldn’t. But the reality is, when alcohol and festivities are involved it’s very easy for things to go wrong very quickly.

To make sure you stay compliant on the night, appoint a few people to be in charge. They should be checking in with people, checking in with any bar or function staff to make sure everything is running smoothly, and generally keeping an eye on the event to provide oversight.

Remember also, if you are in a management position, you cannot abdicate your positive duty to others.

A prudent and preventative approach is to send communication before the function reminding people of the function details, of start and end times, and a gentle reminder about your workplace policies relating to appropriate behaviour at social functions. It just may make someone stop and think twice before doing something wrong.

5. Think after the event

Most harassment claims don’t actually occur at the event but after it, when the night draws on and people become more intoxicated. But, as an employer who hosted the event leading up to any incident, you may be liable even for something that happens afterwards.

Communicate to people when the line gets drawn between your event ending and any “private functions” beginning.

Also, if you’re going to do this walk the walk, don’t just talk the talk. Your managers have a responsibility to play here, too. If a senior person or business owner turns up to a private event and something happens then that’s potentially on you. So do everything you can to stay professional.

If any reports of harassment or other bad behaviour emerge, investigate them straight away. It doesn’t matter that you’re almost on holidays – you have a duty.

Have fun

Just because you have obligations for positive duty doesn’t mean you can’t have fun. A lot will have happened over the course of this year and it’s important for your team to celebrate its successes and leave 2024 on a high note.

So make sure you turn up to your function and encourage employees to enjoy themselves. But remember, the office function is still the workplace!