Around this time of year, employment commentators often publish articles about the risks arising out of work Christmas parties. These include the usual risks such as a sexual discrimination complaint, workers compensation journey claim etc. If these risks did not already deter an employer from hosting a Christmas party then read on as a new potential liability now exists via the increasing penetration of 'social media' into all facets of the employment relationship. This includes the work Christmas party.

'Social media' is a term used to describe the use of web-based and mobile technologies which permit parties to communicate in an interactive manner.

In more recent times, most employers have embraced the use of some or all of the readily available social media mediums (eg iPhones, Blackberrys etc) and social media websites (eg Facebook, Myspace, LinkedIn, Twitter, YouTube etc). This has a number of positive benefits, including in particular, our apparent unquenchable desire to communicate instantaneously.

Additionally, social media allows employees to:

  • establish and consolidate networks of relationships with existing and potential clients;
  • build communities of clients, colleagues and peers with common professional interests;
  • enhance the employer's reputation as a thought leader within those communities; and
  • contribute to an employer's brand by making insightful, positive and subdtantive contributions to discussions on topics within an employer's areas industry sector speciality.

However, not all of these employers will have in place an appropriate social media usage policy.

Potentially more troubling is the fact that not all of these employers will appreciate that social media has blurred the boundaries between work and home time. When an employee who is at home, using his/her own computer, declares on Facebook that he/she thinks their colleague is a schmuck, then this can have ramifications for both the employee and employer.

For the employee the ramifications can include the loss of their job. An employee of the franchised operations, The Good Guys, recently found this out the hard way after he posted an aggressive and offensive anti-work rant on his Facebook page from his home computer outside work hours.

Whilst the employee did not name The Good Guys, his rhetorical post that he "...wonders how the f--k work can be so f--king useless and mess up my pay again. C--ts are going down tomorrow." was sufficient to warrant the summary termination of his employment. This was despite the employee arguing that his Facebook page was set to the maximum privacy setting and only his select group of 70 friends could see what he had written.

However, the Tribunal found that:

  • the fact that the comments were made on the employee's home computer, out of work hours, does not make any difference; and
  • the comments were read by work colleagues and it was not long before the employee's manager was advised of what had occurred.

For the employer, the ramifications are equally serious, and this is where the work Christmas party comes into the picture. The reality is that if an employee can be subjected to the ultimate sanction (namely summary termination of their employment) for use (or misuse) of social media outside of work hours, an equal level of liability exists for an employer. In particular, an employer can still be vicariously liable for the acts (or omissions) of its employees who misuse social media, even where this occurs outside work hours and/or when an employee is using his/her own computer.

The Christmas party can be a hotbed of potential liability for employers as the party atmosphere contributes to employees letting their hair down and, in many cases enjoying a drink or too, and in some cases, too many drinks. For this reason, employers take a number of preventative measures to reduce this potential liability including (this list is not exhaustive):

  • before the event, communicate and promote a standard of expected behaviour at the function (including the obvious reminder that discrimination and harassment will not be tolerated);
  • set a dress standard for the function so that it remains professional;
  • ensure food is served throughout the course of the function;
  • ensure the responsible service of alcohol, and
  • implement a specific cut-off point where the work function officially ends, and consider appropriate means of ensuring employees can make their way home safely.

However, given that the social media has blurred the boundaries between work and home time, it is also appropriate for employers to expressly remind their staff that the employer's zero discrimination and harassment policy applies to all social media used by employees, including before, during and following the work Christmas party.

In particular staff should be informed, so as to remove any doubt, that a failure to comply with their employer's social media policy before, during or following the work Christmas party will be dealt with by their employer as a disciplinary matter.

So what should a social media policy cover? This will vary from organisation to organisation, however the fundamentals will cover the following:

  • employees should be reminded that they are representing their employer. Whilst an employee is responsible for the content of their posts online, it is possible that what they publish can reflect directly on the employer's brand. Employees should be told that:
    • their comments should be reflective of their own opinion and not posted on behalf of the employer unless they are authorised to do so; and
    • in any event, they must still ensure that their content and tone are consistent with their employer's brand and values;
  • employees should be reminded to protect their employer's confidential and proprietary information;
  • employees should be reminded not to reference customers, suppliers or other employees (particularly in any discriminatory or unfair way);
  • employees should be reminded that the content posted by them is permanent;
  • employees should be reminded to protect their and others' privacy by not posting specific personal information;
  • employees should be reminded to respect their audience, and to be polite and respectful of others' opinions, including any potential negative comments;
  • employees should be reminded that all of the employer's policies and procedures still apply to online activity; and
  • employees should be reminded that their employer is provided social media to allow them to build a community with the employer's clients and people. As such, employees should avoid blatant promotion of themselves and build brand value through active, thoughtful commentary on issues within their specialist area.

In addition to the above, a social media policy should also clearly identify the potential penalties for employees found to be in breach of the policy, including the risk of termination of employment. If an employee becomes aware of or notices inappropriate or unlawful content online relating to their employer, or content that may otherwise have been published in breach of the employer's policy, they should be required to report the circumstances to the appropriate officer of the employer.

So should the work Christmas party be cancelled? Fortunately, the answer is no. However, employers who are going to have a work Christmas party would be well advised to plan properly for the event. Additionally, they should take appropriate steps to protect the potential liabilities arising from the use, or misuse, of social media tools/mediums provided to employees who attend the function. This will hopefully ensure that they do not end up plastered over the front page of the newspapers, facing public scrutiny and the Kangaroo Court and a potentially hefty judgement.