With the holidays around the corner, companies and their employees are eagerly awaiting their company holiday parties, where staff will have a chance to let loose with their colleagues and loved ones. For employers, there are a lot of things to coordinate, including selecting an appropriate venue, accommodating food allergies, seating arrangements, holding tryouts for your DJ / MC, etc.
However, unless appropriate safeguards are put in place, the most amazing, brilliantly coordinated holiday party can turn into a total nightmare for an employer. Here are a few common issues and strategies for avoiding them:
Dealing with Impairment
In 2006 the Supreme Court of Canada in the leading decision Childs v. Desomoreaux posed the following question: A person hosts a party. Guests drink alcohol. An inebriated guest drives away and causes an accident in which another person is injured. Is the host liable to the person injured?
The Supreme Court concluded that “as a general rule” a social host does not owe a duty of care to a person injured by a guest who has consumed alcohol unless the host’s conduct implicates the host in the creation or exacerbation of the risk.
This means that, in most cases, employers who invite employees to a holiday party, serve alcohol after clearly advising them that they need to be responsible while doing so, and carefully control the flow of impairing substances are likely to be free and clear of liability.
This also means that employers who fail to do so can reasonably expect a significantly greater risk of liability. Employees are far more likely to drink excessively if they are provided with an open bar, unlimited alcohol and little to no supervision.
Employers must now also consider risks arising as a result of employees consuming other substances at company holiday parties (including cannabis and cannabis derivatives, such as edibles). These issues can cause serious problems for unprepared employers. Significant liability can arise if an employee is harmed as a result of excessive consumption of a variety of impairing substances before, during or after a company holiday party.
The above rules apply equally to employers who elect to provide transportation (e.g. a party bus, taxi chits, compensated Uber rides) to employees, whether to or from the party. However, in some circumstances, an employer may owe an additional “duty of care” to an employee who is very intoxicated and would likely be justified in taking steps to ensure that the employee will not drive.
Employers should, on a case-by-case basis, be ready and willing to provide employees with transportation home in these circumstances. In cases of extreme intoxication or impairment, employers must be prepared to call an ambulance in case a medical emergency arises. Of course, these cases must be dealt with on a fact-specific basis, but it doesn’t hurt to designate decision-makers (who would preferably remain sober) to ensure that employees know who to call and aren’t running around searching for a decision-maker in the event of an emergency.
Dealing with Misconduct
In recent years, employers have suffered significant liability as a result of poor management of employees who are engaging in inappropriate behaviour. Employers should clearly communicate to employees, before the party starts, that instances of harassing, discriminatory or violent behaviour will not be tolerated and that the relevant progressive discipline and code of conduct policies that regularly apply in the workplace will apply equally to their company holiday parties.
Significant liability can also arise when company policies are inconsistently or not at all applied. A great reminder of this sort of avoidable liability came up in Kaferv v Sleep Country Canada, a decision of the BC Human Rights Tribunal. In that case, the complainant alleged that during two (2) consecutive holiday staff parties, she was assaulted on the dance floor by colleagues who sought to include her in “unwanted closeness” on the dance floor. Both incidents were among a few others that were raised at the workplace.
Although the complaint was eventually dismissed because it was found that the applicant welcomed the conduct, Sleep Country underwent two (2) lengthy hearings to disprove the allegations raised by the Applicant and spent a ton of money on legal fees doing so. Both incidents could have been easily avoided if the company had stepped in to enforce a reasonable code of conduct at its staff parties.
Let’s look at things from the other side. In Huffman v Mitchell Plastics an employee got drunk at his office holiday party and proceeded to physically threaten, harass and intimidate his colleagues. Management immediately intervened and prevented further incident at the party.
The following Monday, Mr. Huffman’s employment was terminated for just cause as a result of his behaviour at the party. Mr. Huffman filed a complaint with the Human Rights Tribunal of Ontario (“HRTO”) alleging that he was terminated as a result of a disability (alcoholism). Although the HRTO decided that there was insufficient evidence that the employer knew that the employee was an alcoholic, this case could have resulted in significant complications if the employer had done nothing to curb the employee’s reckless behaviour at the holiday party. The employer’s proactive steps likely prevented police intervention and, potentially, criminal charges.
Tips for Hosting a Holiday Party
If your company is planning on hosting a holiday party at which alcohol is going to be served, you are most likely already aware that you could be exposing yourself to liability if you “over-serve” and “under-supervise” your holiday party, particularly if someone gets hurt.
The case law demonstrates that employers who tolerate bad behaviour at their holiday parties do so at their peril. Any breaches of company policies need to be consistently dealt with. Employees should be well aware that while they can (and should be encouraged to) have fun, they need to limit their consumption of impairing substances and maintain standards of professional, and respectful behaviour towards their coworkers.
Here are a few more practical points to keep in mind as you plan your holiday party:
- Avoid open bars, if possible
- Train managers on how to spot impairment early, and tell employees before the party that they need to be on their best behaviour
- Try to host your holiday party off-site, at a venue where the staff are trained on how to spot impairment
- Encourage employees to carpool and choose certain individuals as designated drivers
- Be ready with taxi chits or Ubers to ensure that employees who are impaired don’t even have to think about driving home
- If the holiday party will not be staffed by professional servers, make sure whoever is serving alcohol to staff members is licensed to do so
- Purchase portable blood alcohol detectors with disposable tips so that employees can check whether they are impaired before they drive
- Ensure that plenty of food and water will be served throughout the night
Adopting some (or all) of the above tips should help you to keep things under control as your co-workers let loose.
We look forward to providing you with more practical content like this in the New Year. Happy holidays – stay safe everyone!
Written by Tushar Anandasagar
Tushar Anandasagar is an Associate Lawyer at LeClair and Associates P.C. He works in all areas of Labour and Employment law, with a particular focus on Workplace Health and Safety compliance and related issues. For further information or discussion, please contact Tushar by email at Tushar@leclairandassociates.ca.