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.

12. #BlackIceMonday
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.

Commenting on the news that Scottish employment rose by 30,000 (1.1%) and unemployment fell by 12,000 (0.5%) in the three months to June, Liz Cameron, Chief Executive, Scottish Chambers of Commerce, said:

“The overall employment figures remain strong, with a new record high employment rate of 75.2% and an unemployment rate of 3.9%. At a time of heightened political and economic uncertainty, the labour market figures are encouraging, showing the commitment and resilience of business to hire and invest in their workforce.

“Although the overall employment rate of 75.2% is the highest since Scottish records began, there are some continued challenges. Strong labour market figures are still not translating into increased productivity or the sort of wage growth that we would normally be seeing with fewer people out of work. This persistent lack of increased productivity and wage growth will add further pressure on consumer demand, business margins and future business investment.

“Additionally, Scotland’s economic inactivity rate remains unchanged from the same period last year, adding further impetus to business and Government to invest in training and upskilling opportunities as a way of encouraging individuals to re-join the workforce. It also reinforces the need for Scottish business to have continued access to a skilled workforce from the EU and beyond as negotiations take shape between the UK and the European Union.”

Traveleads are delighted to introduce you to the newest members of our sales team.

 
Sally Cassidy joins us as Sales Director for Scotland (based in Glasgow) and Rhys Ashall has been appointed Sales Director for London & the south of England. Both Sally and Rhys have a wealth of experience in travel management and business travel solutions.

Through personal development coaching Sally has worked with a range of entrepreneurs and looks forward to making the process of travel procurement a seamless end to end customer journey.
Rhys has enjoyed a successful career in the travel industry through a variety of roles, and offers your organisation the benefit of many years of travel buying experience.

Sally and Rhys join Will Helsby and Wayne Russell, strengthening our sales team across the UK. If you would like to learn more about how Traveleads can help your business travel for less, please contact a member of our team to schedule an appointment:

Will Helsby  (Sales Director)  whelsby@traveleads.net

Wayne Russell  (Sales Director for Scotland – Edinburgh Office)  wrussell@traveleads.net

Sally Cassidy  (Sales Director for Scotland – Glasgow based)  scassidy@traveleads.net

Rhys Ashall  (Sales Director – London & the South of England)  rashall@traveleads.net

Thorntons’ Employment Law team has announced the introduction of a new range of HR and Employment Law Support Packages designed to support the needs of SMEs.

Recognised for its employer-focused and practical advice, Thorntons’ Employment Law team has developed two packages that provide the right level of ongoing support employment law and HR support for a fixed monthly fee, bringing cost certainty to business’ legal and HR fees.

“Our Advice Line package gives an unlimited telephone advice line, where one of our specialist employment lawyers will be available to answer any employment related queries, 8.30am – 5.30pm, Monday to Friday,” said Thorntons employment partner Noele McClelland.

“We will strive to get to know our clients’ businesses to ensure our commercial advice is tailored to their precise needs, making this a genuinely bespoke service.”

Clients will also be provided with a comprehensive set of HR documents drafted by specialist lawyers – which will be accessible through an online client portal allowing documents to be accessed at any time – and will also be able to access employment law updates and bulletins.

The price of the Advice Line package starts from only £83 plus VAT per month for a business with up to 10 employees.

“In addition to everything included in the Advice Line, our HR Plus package gives clients a fully customised service with documents tailored to suit their business needs,” added Noele.

“We will undertake an audit of policies and procedures – together with training seminars and regular on-site meetings– to ensure that each business is compliant with current employment law.”

The prices of the HR Plus package starts from £100 per month for a business with up to 10 employees. With HR Plus, Thorntons can also offer the added protection of employment practices and Health & Safety insurance to provide cover in the event that businesses do face an employment claim.

Noele said: “These packages offer businesses access to legal advice without the worry of escalating legal fees. However our clients also benefit from the fact that advice and correspondence between a solicitor and a client is protected by legal advice privilege, where the main purpose is to seek legal advice. This is not an option for other non-lawyers or internal communications on HR matters, and gives added protection to our clients in relation to sensitive employment matters thereby avoiding the risk that it could be disclosed if an employee makes a subject access request under the Data Protection Act 1998.”

If you wish to enquire further about any of the packages available, or to enquire about the One Month Free Trial, please contact Noele, Employment Partner on 0131 225 8705 or nmcclelland@thorntons-law.co.uk.