December – the chaos of Seasonal festivities, workload deadlines, travel disruption and notorious office parties has begun.
As the song goes “So this is Christmas”! While the fortnight before the Yuletide break can offer a welcome opportunity for colleagues to relax and celebrate, the festive period also presents its own unique employment law challenges.
For many business and HR managers, Christmas resembles levels of fear and trepidation similar to those experienced by Dickens’ miserly employer, Ebeneezer Scrooge. Fortunately, Loch Employment Law has a gift of 12 tips for the festive countdown to help employers navigate through the nightmare before Christmas:
1. Christmas Party Liabilities
Despite work events such as the office party now taking place off site and outside of work hours, they are still an extension of the office environment.
Alcohol consumption can lead to unwanted conduct, such as discrimination and violence, with Tribunal decisions clearly finding employers liable for such inappropriate acts carried out by their employees. It’s important therefore to remind staff of the standards of conduct.
Employers must be clear that any misconduct that occurs during the party and after, if some of the colleagues decide to continue elsewhere, will be subject to disciplinary action.
2. Discrimination, Bullying & Harassment
Christmas gatherings often present an opportunity for some employees to flirt with their office ‘crush’ in a more social environment. However, the line between ‘banter’ and sexual harassment is subjective and can be a fine one.
Employers can be vicariously liable for sexual harassment so it’s sensible to remind employees that discriminatory remarks or behaviour will not be tolerated. One step employers can take is to update their dignity at work and bullying and harassment policies to include references to work-related social events.
3. ‘Secret Santa’
Secret Santa presents are a great way for colleagues to have some fun and treat each other. However, it can also mean that inappropriate gifts are sometimes given anonymously. Items of an offensive or sexual nature can be embarrassing for some staff and discriminatory to others.
New employees or interns may not know what kind of presents are appropriate for their team. Circulating ground rules for the gift exchange will help prevent the giving of unsuitable items.
4. Christmas Promises
Managers should avoid talking about promotion prospects, performance and remuneration with their employees at Christmas parties. In Judge v Crown Leisure Limited the EAT held that a promise of a significant wage increase made by a manager at the Christmas party was not contractually enforceable because there was no intent for it to be so. Mr. Judge had resigned, claiming constructive unfair dismissal when his salary increase did not come to fruition. The EAT considered the context of the conversation at the party and concluded that it was not intended to be contractually binding.
Although the result was in favour of the employer that time it’s better to remind managers to avoid conducting informal appraisals whilst propping up the bar, to eliminate the potential for future litigation, or unhappy employees.
5. Social Media ‘Surprises’
Remind employees that workplace and social media policies still apply during the Christmas period and outside working hours.
It should made be clear to staff that posting content on social media which could damage the reputation of the employer may be a disciplinary issue. This includes drunken rants about their boss, or comments that could be seen to be bullying or harassment of colleagues.
Employees may post pictures from the Christmas ‘do’ that present the company in an unprofessional light to clients and suppliers. If this is a concern, it’s best for employers to remind staff to be wary and exercise discretion when posting images.
6. Grievance or Grinch?
If an employee does raise concerns about something that has occurred at an office party, HR should treat it the same as any other complaint. It is important to avoid dismissing complaints or deeming inappropriate jokes or remarks to be simply ‘party banter’. Allegations of misconduct at a Christmas party are as serious as those brought up in the office.
If an intoxicated colleague confides in you about concerns they have it is best to ask them to discuss it with you on a confidential basis once you are back at the office. If they do not raise it again, you could mention the subject to find out if they wish to discuss it the next day. Employees who voice their apprehensions under the influence of alcohol may be less willing to revisit concerns back at the office. However if it is a genuine concern, encouraging them to open up is the best approach.
Any investigations should be conducted professionally and thoroughly. Equally, management should act to deal with inappropriate behaviour as and when it is reported.
7. Holiday Discrimination
Whether or not employees are religious, many enjoy getting into the spirit of the holiday season. However, not everyone celebrates Christmas. This does not mean treating those who do more favourably, or granting holiday requests to those with children just because Schools are closed. Holiday requests should be treated equally, though personal circumstances may be considered in order to be fair and reasonable.
For some industries such as retail and hospitality, this will be the busiest time of year which means some staff will be required to work on Public Holidays. Holiday entitlement during this period should be based on the business needs of the employer and they should be in a position to objectively justify denying requests if staff request time off for religious reasons.
Favouring one group of employees over another around religious holidays and festivals exposes employers to successful discrimination claims.
8. Happy (Untaken) Holidays?
On the topic of holidays, employees often ask if they can carry over their untaken holidays into the New Year.
The Working Time Regulations prevent statutory annual leave entitlement being exchanged for payment in lieu. However, there are some situations such as long term sickness preventing an employee from taking accrued statutory holidays. Unused holiday can then be carried over. If you wanted to, you could allow employees to carry forward any accrued holidays in excess of the minimum statutory entitlement of 20 days.
9. Bonus Entitlement
Some organisations pay Christmas bonuses as a gesture of goodwill in December. If this becomes a regular, unqualified habit, employees can argue that this forms a ‘custom & practice’ and has become a contractual entitlement. To retain flexibility around festive bonuses employers must ensure that employment contracts specify the bonus is only paid at the discretion of the employer, and that a bonus is not a contractual entitlement. Varying what you do each Christmas will always help here.
10. The Xmas ‘Flu’
The festive period can often lead to high levels of absenteeism – sometimes conveniently the day after the office party!
Employees should be reminded that they are expected to attend work the next day in a fit state unless they have booked the day off as annual leave. Employers often expect staff to be rather weary the morning after the night before. However, consistency is important when dealing with unacceptable absenteeism. Employees should be made aware that lack of attendance without a valid reason can be treated as a disciplinary issue, as with any other unauthorised absence.
If there are employees who need to drive or operate machinery the day after the office party, employers must be mindful that they may still be under the influence of alcohol. Employees must be reminded that it will be their responsibility to ensure they drink sensibly at the event and are safe and legal to perform their duties the next day.
If there are concerns about an employee’s fitness to safely perform their duties it is worth considering suspending the employee to investigate further in accordance with their disciplinary policy.
11. Stay Safe
Health and Safety obligations should be considered with an element of common sense and measure. Additionally, reasonable risk assessments must be conducted when choosing locations for Christmas events or decorating the office. Employers must be mindful that they could be liable for health and safety incidents that may occur during a work party.
Ending the official event near a train station or bus stop will make it easier for employees to plan their safe return home. If a member of staff has had too much to drink, then an employer should consider taking some responsibility for ensuring they get home safely or are at least being looked after by a friend or colleague.
Finally, UK employers faced considerable disruption earlier this month as the freezing temperatures and blizzards resulted in travel being disrupted and many employees not being able to get to work.
Employees who choose not to attend work due to weather disruption are not statutorily entitled to be paid and should take the day as annual leave or unpaid leave if they stay at home. It may be possible for some workers to make up the time at a later date.
If an employee is away from home and cannot travel home, then they should be paid for this time (if they are paid on an hourly basis) as they are still performing duties and could be requested to work remotely. Alternatively, employers could allow the employee to take time off in lieu.
Some employers allow staff to work remotely from home if it is practical and productive. This avoids the pressure on employees to commute in dangerous conditions. Employers should have adverse weather policies in place to manage these situations and be clear on whether or not if staff will be paid for days when they have not been able to attend work.
The festive season should be an enjoyable time for everyone and following our 12 tips will mean you can avoid a January hangover. If you need help with any of the issues we’ve raised then get in touch with our team of experts.