THE EMPLOYERS' EDGE
Tips for your Office Holiday Party
How to Avoid Receiving your "Season's Greetings" on Legal Paper
Everyone loves the office holiday party – a chance to relax and share some time with your colleagues and co-workers that does not revolve around work and deadlines. You shut down your computers, put down your pens and, inevitably, pick up that drink. And when alcohol and the workplace are mixed, things can get tricky for the employer.
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While hosting a holiday party for your employees is a great way to thank them for their hard work throughout the year, employers are becoming increasingly concerned with potential liability arising from office parties. There are essentially two main risks, or perceived risks, for employers when alcohol is being served: civil liability from drinking and driving, and internal harassment complaints from inappropriate drunken behaviour.
With respect to the first of these – the employer being held liable for something that happens after a guest/employee leaves the office holiday party – we look at the leading case on the issue of the “social host”, a 2006 Supreme Court of Canada decision (Childs v. Desormeaux). From this decision we know that a social host of a party, unlike a commercial host such as a bar or restaurant, does not generally owe a duty of care to guests or third parties such that they would be required to prevent a guest from driving in an intoxicated state.
However, as you might be able to tell from the inclusion of the word “generally” in the above paragraph, the Supreme Court did also say that there may be some specific instances where such a duty of care is owed. In that regard, the social host may have a duty of care if they are in a situation where they can foresee harm to guests and their relationship to their guests falls into one of the following three categories:
the social host invites guests to participate in an inherent risky or dangerous activity that the host creates or controls;
there is a relationship of supervision or control between the host and the guest; and,
the host exercises a public function or engages in a commercial enterprise.
Although the Supreme Court did not specifically address the potential obligations on employers when providing alcohol to employees at work functions, the decision suggests that employers are likely to be held to a higher standard than social hosts when alcohol is served at company-sponsored events, essentially putting employers in a class between the commercial host and the social host. Employers may require employees to attend holiday parties, are required to maintain a safe working environment for employees and are in more of a relationship of supervision or control with employees than mere social hosts might be. As a result, employers may have a duty to protect employees who are intoxicated, and third parties who may be injured by employees.
The second potential risk for employers arising out of an office party where alcohol is served is one where inappropriate behaviour by one or more guests/employees might lead to a harassment complaint from another guest/employee. This type of occurrence can have numerous negative effects: in addition to the victim’s own awful experience, consider the effect on morale that an ugly incident and/or the follow-up investigation can have on the rest of your employees. While it is important to investigate and address any harassment that does occur, employers can certainly take additional steps to mitigate against that risk by not allowing things to get out of hand at the office holiday party.
To address both of these potential liabilities, and as a “best practice”, the following suggestions will assist your organization in planning and holding a safe company event. Any one, or combination, of the options below, will help you significantly reduce your risk:
Hold an alcohol-free event. This is the lowest-risk option for employers.
If you decide to provide alcohol at the event, speak to employees before the event about the risks of over-drinking. In addition to the issue of alcohol, employees should also be reminded that this is a workplace function* and they are expected to behave in a way that is not harassing, intimidating or otherwise inappropriate.
Holding a morning (brunch) event rather than an evening event where alcohol is served may reduce the consumption of alcohol.
Do not provide free and open access to alcohol. Open access to alcohol encourages excessive drinking.
Provide non-alcoholic drinks as an option.
Avoid serving alcohol if your event includes physical activities, or serve the alcohol after the physical event is completed.
Do not serve alcoholic beverages to under-aged employees or employees who are already visibly intoxicated.
Have food available throughout the party.
Provide alternative transportation for employees (i.e. taxi chits). Encourage employees before the event to leave their vehicles at home and take advantage of the alternative transportation you are providing to get to and from the event.
Arrange for a nearby hotel to have rooms available for employees who are unable to get home.
Stop serving alcoholic beverages at least an hour before the party is over.
We encourage you to contact one of the lawyers at CCP if you have any questions about your organization’s potential employer host liability or you would like more tips on how to further protect your organization this holiday season.
* Note that the law has established that parties put on/sponsored by the employer can, and will, be found to be “workplace”-related, regardless of the actual location.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.