Fallout over Christmas issues

The Christmas period is a time of joy and celebration for many but employers can often face employment law issues leaving them feeling more “bah-humbug” than “cheers”. Set out below are common problems that arise for employers at this time of year.

Some of my employees have not turned up to work on time the day after the Christmas party. What can I do?

Many employers will deal with this type of situation informally by having a word to try and ensure it does not happen again and perhaps getting them to agree to make up the lost time. However, it is essentially a disciplinary issue so, if employees are rolling into work late and you want to deal with this formally, you should consult your disciplinary rules, investigate the facts and, if appropriate, commence disciplinary proceedings. Remember that in all misconduct cases (such as these unauthorised absences), the ACAS Code of Practice on Disciplinary and Grievance Procedures should be followed.

Some employers might also have a right to deduct pay for the time missed but this will depend on the specific contractual terms you have in place.

How do I deal with reports of harassment that occurred at the out-of-hours Christmas party?

If an employee complains that they have been harassed at the work party, their complaint should be investigated and dealt with in the usual way. Even if the party was outside of the usual hours of work of the employee, it is still likely to be considered as a work-related event and therefore an employer has a duty of care towards the employee.

If the allegations are well-founded, disciplinary action against the harasser is likely to follow.

One of my employees is saying that I cannot compel him to work on Christmas Day. Is this correct?

There is no statutory right for an employee to take time off work on bank or public holidays, which is good news for the hospitality and leisure sector, where it is essential that employees are available to work all year round.

The arrangements for an employee’s holiday are governed by their contractual terms and so, assuming there is nothing in his contract stating that he does not need to work, you can expect him to work on Christmas Day.

That said, if the employee is a Christian and is asserting that he needs the day off because Christmas is a Christian festival, you could potentially face religious discrimination claims if you do not allow him to take the day as holiday. To avoid such a claim, you would need to show that your refusal for him to take his holiday on Christmas Day was justified. The legal test for this is that the refusal was “a proportionate means of achieving a legitimate aim”.

In the past I have paid a £100 Christmas bonus to each of my employees. Do I have to do this again this year?

If the right to receive this Christmas bonus is written in the employee’s contract of employment, you need to pay this again. If not, you could face a claim of breach of contract and/or an unlawful deduction from their wages.

Even if there is nothing written in their contract, the right to such a bonus might be expressly included in an employee handbook or similar or it could be implied by the custom and practice of what has gone on in previous years. If it is the case that you have always paid this bonus without exception, it is very likely that the employees can demand it this Christmas too, because it has become an expected right.

However, if you do not wish to pay it, you could try consulting with the employees to explain why you are unwilling or unable to pay the bonus this year and see whether they are prepared to accept that change. Alternatively, you might be able to agree a compromise, such as paying a £50 bonus instead.

Seasons greetings…

Hopefully the above helps to steer you through some of the season’s pitfalls and will mean a contented and claim-free start to 2017.

This article first appeared in QuickBite magazine.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice.  If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.