“It is certainly an issue, just as much for law firms as for any other employers, in the Christmas party season,” said Hunt & Hunt partner David Thompson.

“There aren’t perhaps quite the same health and safety issues in a law firm as there may be in a manufacturing premises, in relation to potential for injuries,” he said.

“But certainly staff can be a lot more unproductive at this time of the year, and very significantly, at Christmas functions. Whether it be the law firm’s Christmas break-up or at other functions where the lawyers are entertaining clients, then it is not uncommon at all for incidents of discrimination and harassment to take place, for which the firm can be responsible.”

Being watchful of employees during the Christmas lead-up can be an extension of the year-round workplace policy on drugs and alcohol, which allows for testing, Thompson said.

“If someone fronts up for work in an unfit state to perform their duties, [and] if the employer has already got a drug and alcohol policy in place, that would allow them, probably, to send them off to have a test.”

Law firms rarely test employees via breathalyser or urine sample, and few have specific policies in place to deal with such an event. “Most will have a general occupational health and safety policy, but very few have a detailed drug and alcohol policy,” Thompson said.

Yet Nigel Waters, policy co-ordinator for the Australian Privacy Foundation, argues that law firms are better placed to handle employee discipline through means other than specific drug and alcohol policies that subject employees to testing.

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“To my mind, the law firm context is right at the extreme end of the equation, where really it just can’t be justified. It seems to be a complete overreaction,” Waters said.

The law allows employers with policies to test their staff — potentially even to breathalyse them in the office. Yet Waters believes that it is most important for a proper balance to be struck between workplace safety and individual privacy.

If an employee happened to be fired after failing a drug or alcohol test at the bequest of the employer, there may be some recourse under privacy law, for “certainly a complaint about a breach of the collection principle under privacy laws would be one avenue”, Waters said.

But regardless of whether firms desire to subject their staff to testing, they are responsible for ensuring end-of-year celebrations are conducted in an appropriate manner, according to Thompson.

“The employer still has a legal responsibility there … and that may mean ensuring people aren’t served once they’ve reached a certain level,” he said.

What is also important is that “drunk employees aren’t allowed to … make their own way home, if they’re clearly not in a fit state to do that. It particularly applies to females who can be at significant risk [if intoxicated]”.