• News
• News Archive
• Media Contact

Beware of too much Christmas 'spirit'

By Sarah Townsend,Senior Solicitor & Josie Toop, Solicitor

First published in The Press 9 Dec 2008

Alcohol often flows pretty freely at Christmas work parties. Everyone lets their hair down and has a good time. But some people push the boundaries too far.

The January fallout can mean unhappy employees, poor staff morale and the risk of personal grievances for employers. 

What steps can employers take to minimise the risk of sexual harassment at Christmas parties and what should be done if a complaint of sexual harassment is made?

Before the Party

Employers may be held responsible for the actions of employees at work Christmas parties, even if the party is held off-site.  So all practical steps need to be taken to prevent sexual harassment occurring.

It is good practice to have a harassment policy in place, which includes a clear statement that harassment is not acceptable and will have serious consequences.  A policy should also include an explanation of what constitutes sexual harassment. 

It could be worthwhile reminding everyone of the policy a short time before the party, as well as the customary cautions to drink responsibly.

More than a hangover to deal with…

The way employers handle any complaint received after the party is very important.  It can be expensive if you get things wrong as discovered recently by an employer who mishandled an allegation of sexual harassment.   

In that case, an 18 year old employee alleged that the workplace foreman groped her at the Christmas party and propositioned her in a sexually explicit fashion.    The foreman denied the allegations and insisted that the employee was sexually provocative.  

After very little investigation, which included secretly videotaping the complainant at work, the employer concluded that the woman was sexually provocative at work. With this in mind, the employer gave her a final written warning for making false accusations of sexual harassment. The employer told the young woman’s mother that a doctor, who had never met the complainant, thought she may suffer from a Borderline Personality Disorder. 

Perhaps unsurprisingly, the employee raised a personal grievance against her employer claiming that it had failed to properly investigate her claim of sexual harassment and claiming that she had been humiliated and constructively dismissed.

The employee won her claim and was awarded nearly $20,000 in compensation.

Investigating a complaint

Although this is an extreme example of what not to do when faced with a sexual harassment complaint, the Employment Relations Authority in this case provided some useful guidelines for employers on how to deal with issues of sexual harassment in the workplace.

It is important for employers not to substitute their own judgement of what constitutes sexual harassment for that of the employee making the complaint. If a complainant perceives that they have been sexually harassed, an employer is bound to investigate by conducting a full and fair enquiry and reporting back on it.

One of the difficulties with this type of allegation is that an employer’s investigation may prompt concerns about the conduct of the person making the complaint, as happened in the above case.   If this does occur, employers need to deal with this separately. Employers must ensure that all parties are treated fairly, are given a proper hearing and be mindful that they have obligations to both the complainant and the alleged perpetrator.

Investigating a sexual harassment complaint can sometimes feel like tip toeing through a minefield.  Although getting things wrong can come at a high price, employers should not be frightened into inaction or into making rash decisions when sexual harassment is alleged. The prudent approach for employers is to take advice, and ensure that they conduct a full and fair investigation into allegations of sexual harassment before taking action.  Not investigating for fear of making a mistake is a mistake in itself, and taking a little time to ensure that the correct process is followed, natural justice is observed, and people are treated fairly, is well worth it.