A Merry and Mitigated Christmas Across Borders

As Christmas (or "Weihnachten") approaches once again, bringing with it the festive work events of the silly season, it is time for employers to unwrap their legal responsibilities.

When Does "Work" End?

Work doesn't stop when employees leave the office. It extends to any setting authorised and permitted by the employer outside of employees' free time. After-parties or kick-on events can constitute "being at work", if it can be established that there is a connection to work. Courts examine all surrounding circumstances to determine whether an employer's liability ceases after the work organised events. 

Jurisdiction-Specific Frameworks

Australia:

Australian employers now operate under a positive duty framework that requires them to take reasonable and proportionate measures to eliminate sexual harassment, sex-based harassment and sex discrimination in the workplace. The Australian Human Rights Commission has prepared detailed guidelines to assist employers in complying with this duty.

United Kingdom:

Since 26 October 2024, UK employers have been legally required to take reasonable steps to prevent sexual harassment of employees in the course of their employment. This includes harassment by third parties, including clients, customers and suppliers – not just fellow employees. Employers must take positive, proactive action to assess risks, put measures in place and maintain constant auditing, rather than waiting until sexual harassment happens. If sexual harassment has taken place, an employer should take action to stop it from happening again. 

The Equality and Human Rights Commission (EHRC) has issued guidance for employers on complying with their legal obligations. Although the guidance is not legally binding, it will be taken into account by employment tribunals when deciding if an employer has breached their duties and whether to award an uplift to any compensation (which can be up to 25%). The EHRC has recently demonstrated willingness to intervene where the duty is not respected, and has a range of powers including imposing binding agreements, launching investigations and reviewing working practices. The EHRC has also published an 8-step guide, which sets out practical steps/actions for employers to prevent sexual harassment in the workplace. The first step is to develop an effective anti-harassment policy, and the Advisory Conciliation and Arbitration Service (ACAS) has published guidance on what to include in such a policy. 

Looking ahead, employers need to prepare for new UK legislation that will (i) strengthen the duty by requiring employers to take “all” reasonable steps to prevent sexual harassment (a significantly higher bar); and (ii) re-introduce employer liability for third-party harassment across all protected characteristics.

Germany:

The German legal framework centres on the General Equal Treatment Act (AGG), which has been in force since 2006 and provides comprehensive protection against sexual harassment in the workplace. This legislation places clear obligations on employers to prevent, address and sanction inappropriate conduct whilst granting employees robust rights to complain and seek redress.

Best Practice for a Complaint-Free Festive Season

1. Deck the Halls with Preparation

When preparing for an end of year party, it is vital to take everyone's needs into account to ensure celebrations are non-discriminatory and inclusive. Thorough planning prevents post-party problems and demonstrates your commitment to all employees' wellbeing.

Ensure celebrations are non-discriminatory by considering:

• Inclusive themes and timing – avoid clashes with religious holidays or sensitive themes
• Dietary requirements – cater to all needs
• Designated supervisors – trained individuals to monitor behaviour, intervene when necessary, and receive complaints
• Clear invitations outlining:
  • Set venue and timeframe (events after finish time are not work-endorsed)
  • Safe transport options (minibuses, taxis, or early finish before public transport closure)
  • Behavioural expectations with links to workplace policies
  • Appropriate dress code

2. 'Tis the Season for Policy Updates

Whilst it is helpful to have workplace policies, they have limited use if they are out-of-date or do not contain provisions setting out what is expected of employees at work-related events. Employers should update policies to ensure they cover the expected standards of behaviour, the consequences of misconduct and the procedures for reporting and handling complaints.

Update and communicate policies well in advance covering:

• Expected standards of behaviour and misconduct consequences;
• Complaint reporting and handling procedures;
• Alcohol management and safety measures;
• Extension of standards to informal/social gatherings.

Policies should be shared with employees well in advance of the events to ensure that they are read and understood and expectations clearly conveyed. Refresher training should be held before events, tailored appropriately:

• Managers: power imbalances and dynamics in relaxed settings
• All staff: behavioural expectations and reporting mechanisms

3. Risk Mitigation as a Pre-Christmas Gift

Given the duty of care that exists across all three jurisdictions, employers must take reasonable steps to ensure the safety of all attendees at end of year parties. This includes managing risks associated with alcohol consumption, ensuring safe transportation options, preventing any form of harassment or discrimination as well as educating employees on reporting channels.

Proactive prevention is key under the positive/preventative duty frameworks.

4. Santa's Listening: Handling Complaints

Employers must ensure that regardless of when a complaint is made, who it is against and how minor it is perceived to be, it is taken seriously and dealt with promptly. In that context, it is important for all employees to understand their company complaints procedure, including how they can make a complaint, who they can speak to, and what actions they can expect by their employer as a result of raising concerns.

Jurisdiction-specific considerations:

• Australia: Employers should ensure that workplace grievance policies are up to date, and that employees are aware of reporting channels available to them.
• UK: Employers should establish escalation channels and a complaints procedure, act immediately to resolve the complaint, respect the confidentiality of all parties, protect the complainant from ongoing harassment or victimization and communicate the outcome and outline any appeals process in a timely manner.
• Germany: Involve works council where applicable (BetrVG) (e.g. issuing warnings, temporary reassignments, accessing employee communications, implementing safety protocols), ensure AGG-compliant investigation timelines; document all interventions and sanctions.

We hope these tips help ensure employers have a safe, responsible and complaint-free festive season. Of course, if you have any concerns or any incidents do occur, we would be pleased to assist. Otherwise, here's to a merry and mitigated Christmas!