The Christmas period is a time for festivity, reflection on a year of hard work, and an opportunity to look forward to the year to come. However, aside from the dubious dance moves on display at the Christmas party, the festive season can give rise to a number of potential issues for employers if they do not know how to handle them. Whilst not wanting to be Scrooge-like in their approach, it is important that employers have an awareness of the legal pitfalls that may present themselves. The information below details common problems that an employer may face around this period and the best methods for dealing with them.
The Christmas party
Excessive drinking coupled with high spirits (no doubt due to the thought of that new pair of socks on Christmas Day) can, on occasion, lead to lowered standards of conduct. This conduct, whether labelled as ‘banter’, ‘joking around’ or otherwise, could amount to harassment.
Unlawful harassment under the Equality Act 2010 arises where an individual engages in unwanted conduct relating to a persons’ sex, disability, race, age, religion or belief, or sexual orientation, which has the effect or purpose of creating an intimidating or hostile environment. Employers can be liable for the actions of their employees, even where the harassment in question does not take place on the employer’s premises or during working hours. For example, an employer may be liable if an employee were to grope a colleague at the office Christmas party, as this is more than likely to be treated as happening in the course of employment. Further, an employer cannot simply escape liability for the actions of its employees by claiming ignorance as to the unlawful conduct; it needs to show that it took steps to prevent that conduct from occurring.
As such, it is important for employers to engage with the issue directly. Of course, employers will want their staff to enjoy themselves at Christmas functions. However, it is worth reminding them that they must treat each other with respect; what is one person’s ‘banter’ may be offensive to another. Employers should also gently communicate to employees that they should not get too intoxicated and should refrain from any mistletoe moments that may only seem like a good idea after a few glasses of mulled wine.
In the event that employees do behave unacceptably at Christmas functions, employers should be sure to take disciplinary action against that employee on their return to the office.
The morning after
It is possible that, depending on the level of alcohol consumed at Christmas functions, some employees will have slightly sore heads the following morning. A hangover is generally not an acceptable reason for sickness absence during the festive period, much as it would not be acceptable at any other time of the year.
It is advisable that employees are reminded that sickness absence will not be treated any differently, just because it is the Christmas period. In the event that an employee suspects that he or she will be suffering from a festive hangover, employers should recommend that annual leave is booked in advance, in anticipation of such. Where employees arrive to work still drunk, or with a hangover, and are accordingly unfit for work, an employer may be entitled to send them home without pay (…but with a coffee).
‘Let it snow, let it snow, let it snow!’
A white Christmas is an appealing prospect for the majority; however, adverse weather conditions such as snow can be problematic for employers when it prevents their employees from travelling to work. Recent case law has reiterated the importance for employers to have regard for the health and safety of its workforce. In circumstances where the employee reasonably believes that he or she is at risk of harm, for example due to the roads being in a hazardous condition, that employee is entitled not to come into work to avoid the risk of harm. As employers cannot force employees to come into work, it is vital to clearly set out the procedure and steps to be taken in the event of disruptive weather conditions.
It is recommended that employers communicate their stance on adverse weather and travel disruption, setting out the options available to employees in the event these issues impact their commute. These would normally include:
- Taking the time off as unpaid leave;
- Offering that the employee take the period of absence as paid annual leave; or
- Allowing the employee to work from home or from an alternative location (if this is appropriate in the circumstances).
Whilst an employee may rather be making a snowman than journeying through the cold and snow to come into work, it is important that: 1) they are encouraged to make their best attempt at getting into work; and 2) they follow the correct procedure in the event that they cannot make it in. Where there is real reason to suspect that an employee has chosen to use bad weather as an excuse not to come in rather than them not being able to get in, disciplinary action may be appropriate.
Ho Ho Ho… Holiday at Christmas
Many employers shut down or close their premises over Christmas and, as such, may (and can) require employees to take specific dates off as annual leave by serving notice on them to do so. The length of notice that employers need to give is twice as long as the amount of holiday that they are requiring employees to take. For example, where employees are made to take 5 days’ holiday, then 10 days’ notice must be given.
It would also be sensible to include a provision in contracts which states that employees must retain enough holiday to cover the Christmas period if the employer chooses to shut down, or else they must take it unpaid. This will assist in managing expectations at an early stage.
If they wish to shut down over Christmas, employers should inform employees that they require them to take holiday by way of an internal memo, bearing in mind the required notice period. (Most) employees will no doubt be thankful for the time off.
These practical tips should ensure that those dodgy dance moves will be the extent of employers’ problems over the festive period. Have a Merry Christmas from all at Leathes Prior!
For further information on any of the topics raised in this article, please contact a member of the Employmentor Team on 01603 281139.
Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance.
