Holiday party or peril?: 'Tis the season to be vigilant

Whether in-person or virtual, the joys of the office holiday party are a Trojan horse for violence, harassment, ruined careers and bankrupt businesses

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By Howard Levitt and Maxwell Radway

Office holiday parties are back. But alas, rather than the raucous festivities of previous years, ’tis the season to be vigilant.

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Whether in-person or virtual, the joys of the office holiday party are a Trojan horse for violence, harassment, ruined careers, and bankrupt businesses.

The most notorious instigator is alcohol. While celebration can bring workers and their employers together, that celebration is too often spiked with excessive alcohol and other mind-altering substances, some legal, some not.

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Under the influence, it is tempting for workers and their managers to forget that they are attending a professional event, no less ruled by workplace policies than their usual office space or videoconference meeting.

Instead, the office holiday party should be treated as an extension of the workplace. If the party occurs at the workplace, employers should ensure that there is appropriate professional staffing and licensed servers if the employer is intent on assuming the unbounded risks of providing alcohol.

One of those risks is violence and harassment, including sexual harassment, whether fuelled by the unique courage that alcohol imparts, or the equally unique risk of undetected social cues and resulting misinterpretations. Those peculiar circumstances, rare in the usual workplace environment, can spur an insulting comment, unwanted sexual advance, or might  even result in a fistfight.

Harassment occurs when someone says or does something that they knew, or should have known, would be unwelcome to someone else. Jokes and sexual remarks that would not be permitted in the office should be likewise assumed not to be permitted at an office party. That also applies to insults, innuendos and comments on physical appearance or clothing.

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Dancing, one historic staple of celebration, is similarly a key candidate for prohibition. Dancing often involves touching or leads to touching, and touching is rarely appropriate in a workplace, excepting handshakes, high-fives, or the increasingly popular fist and elbow bumps. We might add that the historic symbol of mistletoe is not a defence at law.

No, the historic symbol of mistletoe is not a defence at law
No, the historic symbol of mistletoe is not a defence at law. Photo by Shaughn Butts/Edmonton Journal files

Violent and harassing conduct can lead to health and safety violations, human rights complaints and constructive dismissals, with constructive dismissals being the most common peril at office parties, covering a broad range of conduct.

Any threats or promises relating to a worker’s terms of employment are a significant risk for a constructive dismissal claim. Managers must be careful to avoid divulging any confidential information or providing false praise or criticism. Even worse, promises or threats to change a worker’s terms of employment, including dismissals, promotions, demotions, or deviations in remuneration, are almost certain to lead to the risk of a lawsuit.

Even worse is the issue of an employer’s vicarious liability for the tragic events that can sometimes unfold after an employee leaves the holiday party intoxicated.

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As the host of the event, the employer is liable for not only whatever might occur at the party but also whatever might occur soon after. If an employee is over-served and attempts to drive, the employer is liable to whatever harm befalls them or the harms they inflict on others, with associated costs that could bankrupt many organizations, particularly when the harm involves the employee’s or another person’s death or permanent incapacity.

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All the same risks apply equally to virtual parties, aside from those involving physical touch, and other unique concerns can be present. An employer has reduced ability to monitor an employee’s alcohol consumption when they are at home and it is more difficult to police an employee’s wardrobe.

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Still, there are many ways to minimize the risks of both in-person and virtual holiday parties. It begins with policy and preparation. An employer should provide employees with policies on respectful conduct, violence and harassment. Employees should be reminded of those policies in a pre-event communication, along with ground rules and safety information. They should make clear what conduct will lead to dismissal. That is part of responsible party planning that might also involve arranging hotel rooms for traveling guests, complimentary taxi rides for the end of the night, or setting a strict cutoff time for a virtual party.

Ultimately, the fewer differences between the office and its holiday party, the better. That is the law, much as we may lament the metamorphosis from ho ho ho to ho-hum.

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Maxwell Radway is an associate at Levitt Sheikh.

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