In brief - Trick or treating at work can be a legal risk for employers, as more Halloween parties take place at work in Australia - attracting vicarious liability. Employers are encouraged to adopt a 'mischief management plan' to reduce legal risk
The popularity of Halloween in Australia has increased in the last 10 years. This has seen an increase in workplaces hosting Halloween functions or allowing employees to wear costumes and/or decorate the workplace. Employers and employees alike should be aware of potential issues that could arise out of Halloween festivities in order to avoid any scary situations.
While Halloween events may be a vehicle to enhance employee morale in the workplace, employers should be aware of the accompanying risks. If there's one thing that scares HR more than witches and ghosts, it's being the subject of a workplace complaint or litigation. Liability is a realistic issue even where a Halloween event is held outside of work hours at an external venue, as there is still a relevant connection to the workplace. Accordingly, employers could be held vicariously liable for the unlawful behaviour of employees at these events. Sounds spooky.
Dressing up can be entertaining, however employees and employers must proceed with caution when selecting a costume.
Following the end of the AFL season, controversial costumes from Silly Sunday can often be seen in mainstream media. In 2017, a football club was condemned after players dressed up as Catholic priests for their end of season celebrations, a costume that was deeply offensive to many.
Whether it is at a football club or in the workplace, costumes that discriminate against religion, gender, race, mental health or sexual orientation are inappropriate and discriminatory. Costumes that discriminate may contravene equal opportunity legislation or adverse action laws, which can result in costly and time consuming claims.
Gender discrimination is an issue that sometimes arise when fancy dress parties occur at work. For example, implying that a female employee dress up as a witch because she is a strong leader in a senior management position is unacceptable, and may put an employer at risk of a discrimination claim on the basis of gender. Similarly, Halloween may give rise to a sexual harassment claim where lewd comments of a sexual nature are made about an employee's choice of costume.
Bullying, which has been described as the greatest workplace issue of our time, can also raise its ugly head in this context. Ostracism of an employee who doesn't want to take part in Halloween festivities or public humiliation in the form of playing a Halloween prank on an employee could result in an allegation of bullying at work.
Mischief management plan
In order to ensure there are no skeletons in the closet following workplace Halloween festivities this year and no need to bury any bodies post event, employers should take the following measures when preparing for and managing Halloween events:
Esure that the organisation has in place current policies on equal opportunity, sexual harassment, bullying and workplace health and safety. Policies should be reviewed now for compliance with current judicial expectations, as defective policies will be no defence. The policies should form contractual terms referenced in employment contracts.
Circulate and reinforce workplace policies, and the Code of Conduct if you have one, prior to Halloween events. Having a culture that mandates respect in the workplace doesn't begin at Halloween. It is of the upmost importance year round and should be a continual focus for HR.
Remind employees that it is against the law to discriminate and will not be tolerated in the workplace. Ensure employees are aware that costumes or activities that discriminate or could be perceived to discriminate will not be tolerated.
Ensure responsible service of alcohol at any Halloween functions. In McDaid v Future Engineering and Communication Pty Ltd  FWC 343, the Fair Work Commission (FWC) held that employers must “take steps” to ensure that they serve alcohol responsibly. As the FWC does not always assume adults can be responsible for themselves, employees and others present should not be allowed to become heavily intoxicated. Consider sending unruly employees home in a taxi before anti-social behaviours develop.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.