“Did somebody say mistletoe?”

If you’re an employee and you hear these words at the office holiday party, your instinct is probably forcing you to run in the opposite direction.

If you’re an employer and you hear those words, you need to be listening very, very, carefully.

And, if you’re the person saying those words, whether you’re a manager or work in the mail room, you could still benefit from a primer in employment law today.

The Office Holiday Party

If you worked in an office environment in the 1980s or 1990s, or have ever seen the movie Die Hard, you have a sense of what the office holiday party used to look like.

First, it was usually the Office Christmas Party, as most employers were not concerned with recognizing employees of different faiths or backgrounds.

Second, many were notorious for their drunken debauchery - an opportunity for employees to let loose, and for many to do things (including with coworkers) that they may not have dared to do under normal conditions.

Employers were likely expecting a slower start to work the next day, but that most employees were little worse for the wear. However, changing climates, changing laws, and changing attitudes have shown that this was anything but true.

First, Watch The Booze

The first trend that employers began to notice was the risks that they faced in allowing employees to become intoxicated.

At one time alcohol may have been a free-for-all in some environments, with no controls placed on what employees drank or what they did after imbibing.

Then 20 years ago we wrote about the case of Linda Hunt in Hunt v. Sutton Group - an employee who had far too much to drink at the office party, went for more drinks after, and then was severely injured when she crashed her car leaving the pub.

A jury initially found that the employer was partially responsible for her injuries, although the Court of Appeal sent the matter back for a new trial.

However, the message to employers began to ring clear - they needed to take at least some responsibility for employees’ consumption while at a work event.

This has led to some great practices: introducing limited drink tickets, offering credits for a rideshare service, or even offering employees nearby accommodations. For employers on a smaller budget, a dry daytime event may also be a workable solution.

The law may be a bit complicated when it comes to an employer’s actual legal liability for their employees when drinking, but the considerations are clear. An employee who’s being over-served on your dime is not only an expensive proposition, but can be a liability for other reasons as well.

That Pesky Mistletoe Can Actually Be Dangerous

The other crucial differences between workplaces 30 or 40 years ago and workplaces in 2023 is a heightened awareness of workplace sexual assault, and changed laws to go with it.

While sexual assault was never okay, it was certainly viewed differently at one time. Employees were expected not to complain, and employers were expected to shrug their shoulders much of the time.

Needless to say those days are long over. In Ontario specifically, the Occupational Health and Safety Act changed in 2015 to include ‘workplace sexual harassment’ in the definition of workplace violence and harassment.

The law defines workplace sexual harassment as a ‘course of comment or conduct which is known, or ought reasonably to be known, to be unwelcome.’ In other words, if a reasonable person thinks it’s not okay, it’s likely not okay. If the person subjected to it thinks it’s not okay, it’s definitely not okay. If you know it’s inappropriate and keep doing it then it’s absolutely not okay.

Yes, there will be colleagues who ‘form a connection’ at the holiday party, and if both are consenting freely then there may not be any issues.

Yet if one party isn’t welcoming the advances, employers have serious responsibilities. These include having a comprehensive policy on workplace sexual harassment, training all staff on that policy, and investigating any incidents of harassment that may arise.

So no, mistletoe isn’t entirely harmless, especially if an employee tries to take advantage. Employers are responsible for keeping all employees safe, and that means paying close attention to bad behaviour.

The Bottom Line

The bottom line is that whether the office holiday party takes place at the office, at a nearby bar or restaurant, or at a different venue altogether, it’s still technically ‘the office.’

Even if employees are allowed to let loose and unwind a little, they should still conduct themselves as though they’re on duty - or at least not do things that they wouldn’t do while working.

Remind your employees of this, and set your expectations clear. You can still have an awesome holiday party, but remember that you’re still professionals at a work event and not revellers in a Hollywood movie.

Lastly, if anything does arise at the holiday party where you need to get legal involved, we’re never more than an email or phone call away.

With that, we wish you all a wonderful holiday season, and we can’t wait to work with you into 2024 and beyond.