Want to skip the party after work? You have the right be boring

By Tony Poland, LegalMatters Staff • A media report about a French worker who fought for his right to refuse to party should serve as a cautionary tale to employers hosting after-work gatherings this holiday season, says Toronto employment lawyer Ellen Low.

Low, principal of Ellen Low & Co., pointed to the case of a Parisian company that fired an employee for being boring at work.

It was reported the worker refused to take part in after-hours team-building events that included excessive drinking. 

A French court ruled that man had a fundamental right to dignity and respect of private life. In awarding him C$4,300, the court found he was expressing his freedom of expression by not taking part in what his company argued was a “fun” approach to team building.

The company engaged in ‘humiliating and intrusive practices,” the court stated, and sanctioned “excessive alcohol intake, encouraged by associates who made very large quantities of alcohol available.”

Low tells LegalMattersCanada.ca that while the case may be novel, it should at least spark the interest of employers now that the holiday season has arrived.

Attendance could depend on when the party is held

“Do you have to go to a company celebration? The short answer is no. You obviously cannot be forced to go to an after-hours work party,” she says. “But if the social event is being held during regular office hours, then there would be an expectation that you would need to attend.

“Many parties at this time of year are held outside of work hours and that is all well and fine,” Low adds. “But employers have to respect the rights of people who do not want to surrender their evening.”

And employees cannot be threatened with job sanctions or dismissal for refusing to drink, she says.

“Absolutely under no circumstances could you suggest in the province of Ontario that someone would be required to imbibe an alcoholic substance,” Low says.  

“In the French case, this man does not want to drink and somehow that renders him boring.

“But is not that perception predicated on what might be protecting human rights grounds?” she adds. “He doesn’t have an obligation to share with the employer his religious background, his beliefs or a medical reason as to why he does not want to drink.”

Legislation protects workers’ rights

Low says worker rights in Ontario are protected by the Employment Standards Act, 2000 (ESA) and the Ontario Human Rights Code (OHRC).

“If someone is fired in Ontario because they refuse to attend parties, they would be wise to seek the assistance of a competent employment lawyer who could point to the relevant provisions of the ESA about hours of work and overtime,” she says. “There are also OHRC provisions to protect those who do not imbibe alcohol based on a number of prohibited grounds including religious and medical.”

In Ontario, threatening an employee with a job sanction or dismissal for refusing to drink alcohol would be seen as a reprisal “for asking for an accommodation and compliance in accordance with the human rights code,” Low says.

“As well, if an employee explains that they will not able to attend an after-work gathering due to family obligations or some other reason and they are fired, it is going to be presumptive reprisal under the ESA,” she says.

Exceptions to the rule

While an employee cannot be obligated to attend after-work functions, there are exceptions, Low says. The employee might be expected to attend if there is a training aspect to it.

“If it is training time, then an employee’s attendance could be required. But they would have to get paid for it,” she explains. “Time spent on employee training that is required or mandated by the employer is work time in accordance with the ESA.

“As well, there is a legitimate argument that the worker should be getting paid to attend work parties if there is going to be a substantive discussion about work or goals for the following year,” Low adds. “If it is any type of work event disguised as training it may well fit under the ESA minimum requirements for payment.”

‘Factual matrix’ needs to be considered

However, she says the “factual matrix” would have to be considered. Generally, if the time spent in training is not required or mandated by the employer in order for the worker to do their job, it is not counted as work time, Low says. 

“For instance, an employee voluntarily taking extra training in order to qualify for a promotion would not be entitled to extra pay,” she says. “Also, if training is offered as an option for further education but is not required for the job, that would not count as work.”

Low also points out that employees may be excused from participating in virtual office parties if they occur after work under the Working for Workers Act, 2021, which includes the right to disconnect. That right to disconnect only applies to companies with more than 25 workers, she notes.

“When it comes to workplace gatherings, employers must be careful of the ESA hours of work provisions,” says Low. “If a worker says they do not want to go to a party because they have already hit their permissible hours of work per day or permissible hours of work per week, I would take that very seriously as an employer. I would really give that some thought and some pause.

“The right to be boring does, to some extent, exist in Ontario,” she adds. “If an employer is mandating attendance at an after-work party and drinking in particular, it is probably a serious no-go.”

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