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Workplace holiday parties: Keep the fun, avoid the legal headaches

The workplace holiday party season is in full swing. It’s a great opportunity to stop, say thanks to your teams and have a little bit of fun in the process.

But holiday parties can pose a litany of HR and legal headaches — alcohol (and even cannabis, in the age of legalization) doesn’t always mix well with the workplace, causing issues around sexual harassment, misbehaviour, and liability for things like driving under the influence.

Karine Dion, a lawyer with Nelligan O’Brien Payne LLP in Ottawa, said there are a few tactics employers can use if they notice someone is having a few too many drinks. One option is to send the worker home from the party.

“Having them sent out would be extreme, and it could be very embarrassing for them,” she said. “I would say that’s a last resort if they can’t come back from where they are. If they’re that bad, I would get a taxi for them, walk them to the taxi and make sure you know where that individual lives.”

If the behaviour hasn’t crossed a line, then it’s OK to pull them aside for a quick conversation, said Dion.

“Maybe bring them a glass of water and say, ‘Hey, I’ve noticed that you seem to be drinking a bit much. We just want to make sure you’re OK,'” she said. “Maybe take a little break and then continue to have fun after the fact.”

Limits on consumption

One idea to limit consumption is to not have an open bar and use drink tickets.

“I know some employers refuse to serve shots. Tell the establishment that no shots are allowed, even if the employees are willing to pay for them,” said Dion.

She recently attended an event that had a mocktail bar with fun drink options without alcohol.

“Honestly, they were really good. I tried all of them and and it made you feel like you were sipping a cocktail,” she said. “Some people feel pressured to drink at events like that, so having something like a mocktail option that tastes just as good is another alternative.”

Employers can also offer to pay for rides to and from the party to avoid issues around driving under the influence, she said.

“Give them a taxi chit or say, look, we’ll give you up to $100. Just give us a receipt the next day,” said Dion.

Off-site parties

Dion said the definition of a “workplace” can extend to an off-site venue where a work-related function is taking place.

“Just because you’re not on workplace premises doesn’t mean the employer can’t be sued should something happen,” she said.

For example, if the party takes place at a restaurant and an employee gets drunk, drives away and gets in an accident?

“There’s at least going to be some contributory negligence on the part of the employer for having allowed that behaviour,” said Dion.

The Hunt case

It’s impossible to talk about holiday parties, in Canadian workplaces anyway, without discussing the case of Hunt v. Sutton Group Incentive Realty Inc.

On Dec. 16, 1994, Sutton held an office party at its workplace in Barrie, Ont., with an open bar. One of its employees, a 44-year-old part-time receptionist and licensed realtor, got into a serious accident on her way home. It occurred after she became noticeably intoxicated at the party, held during working hours, and the employer failed to take sufficient steps to prevent her from driving.

After leaving the workplace party, she went to a local pub and drank more before getting into the catastrophic accident during a winter storm, resulting in a head injury, brain damage, and fractures to her pelvis and cervix.

The Ontario Superior Court of Justice, in its 2001 ruling, underscored the duty of employers to ensure the safety of employees, extending beyond the workplace premises. While the court deemed the woman 75% responsible for her injuries, it held both Sutton and the pub she went to after hours liable as well.

Sutton had a standing offer to all employees that they could take a cab home. The court ruled this wasn’t sufficient, nor was an offer by her boss to drive her home. Counsel for the employer argued that taking her keys would have been tantamount to theft, something the court also rejected. It also ignored an argument that forcing Hunt into a cab would have amounted to “false imprisonment and even kidnapping.”

In real dollars, the employer was on the hook for about $300,000 as a result.

“(The employer) ought to have foreseen that by maintaining an open and unsupervised bar, he would be incapable of monitoring the alcohol consumption of his employee, which led her into the danger in question,” wrote Justice Marchand of the Ontario Superior Court of Justice.

On appeal, a new trial was ordered after the Ontario Court of Appeal ruled the lower court judge erred in dismissing the jury because he thought the trial was too complex. The case was settled before it went back to trial, so the final bill the employer had to pay is confidential and unknown.

Consequences for employers

There are risks for employers that go beyond just liability should something go awry at or after the party, said Dion. That includes having workers go on a sick leave if, for example, they are sexually harassed and suffer mental health issues as a result.

“Not only could you lose employees to a sick leave, if a behaviour is bad enough during a party and permitted by the employer without consequence, an employee might go so far as to try and claim what’s called constructive dismissal,” she said.

In that scenario, a worker could say that because of misbehaviour that was left unchecked they have effectively been constructively dismissed and would be entitled to things like common law notice and perhaps additional damages.

Even in less serious instances, it can make for an awkward workplace, said Dion.

“If something happens at the holiday party, and then you have to resume employment, it could get strange,” she said. “Depending on who it was — maybe the two people in the scenario were a manager and a subordinate where one of them wouldn’t take no for an answer. It can lead to a lot of problems, and not just money.”

Are parties worth it?

Given all the potential for negative consequences, it can lead one to wonder if holiday parties are worth the trouble. But Dion doesn’t view it that way.

“I don’t think there’s anything inherently wrong with it, so long as it’s monitored. A lot of workplaces do serve alcohol and there’s no issues whatsoever,” she said. “I don’t agree with the potential of not having a party. Especially these days — everybody works so hard for their employer and people look forward to these events.”

Especially coming out of COVID, where people don’t see each as much — particular in remote or hybrid workplaces where staff are working from home — the party is a chance to reconnect and celebrate.

“That feeling of togetherness and congeniality is important,” said Dion. “It’s important for the workplace. And inappropriate behaviour can happen at any time. You don’t need alcohol or a party for that to happen.”

Social media

Dion’s parting advice came around social media and the taking and posting of photos at a party.

“If, as an individual, you’re taking pictures at these parties and you’re tagging the employer or saying where you work, be careful with what you’re posting,” she said. “Don’t post yourself doing a keg stand, for example, because you don’t want it to come back to the employer and have a negative effect on their reputation.”

Court-imposed penalties

The Alcohol and Gaming Commission of Ontario put together a list of financial penalties imposed by courts in cases where a customer became intoxicated on the premises and caused an accident.

The includes:

• $400,000 when a customer drank 10 bottles of beer then killed three people and injured two others in a car accident
• $88,000 to the relatives of a man who became intoxicated at two establishments and died after falling down a flight of stairs
• $1.75 million when the licensee served an already intoxicated customer whose subsequent car crash rendered his passenger a quadriplegic
• $93,000 to a car-leasing firm whose automobile was destroyed after the man who leased the car was overserved in a tavern
• $124,000 to a professional hockey player who lost income after a bar brawl damaged his arm.