The festive season is fast approaching but will sleigh-bells be ringing in your office? Businesses in the advertising and marketing sector are notorious for their fun approach to Christmas but the festive season can be fraught with employment issues. Naomi Flynn looks at some of the most frequently asked questions by employers and how to deal with the issues in practice.
When: December 2007
Law stated as at: 30 November 2007
What may happen:
Q. Our Christmas party is on a Thursday night. How do we ensure that people turn up to work the next day?
A. Send an email to staff before the party reminding them that, whilst you want everyone to have a great party and don't want to be a kill joy, disciplinary action may be taken if they fail to turn up to work the day after and there is reason to believe it is due to drinking too much alcohol. You should also make sure that there is sufficient food and non-alcoholic drinks available at the party to prevent over indulgence.
Q. If one of my employees gets drunk at the office party and drives home, is it my problem?
A. Yes it is. You have a duty of care towards your employees as their employer, and, as the party is a work event, you need to take some responsibility for their safety. If one of your employees does drink and drive and has an accident, they could potentially bring a claim against you for breaching this duty of care.
Your defence to this claim would be to show that you have taken reasonable steps to minimise the risk to your employees. Practical steps to minimise risk may include: emailing employees before the party to tell them not to drive after consuming any alcohol; hiring mini-buses to take employees home; and/or providing your employees with the numbers of local cab firms so that they can make alternative travel arrangements in advance of the party.
Q. Are Christmas decorations a potential health and safety hazard?
A. Yes, they can be. When putting up Christmas decorations employers should be mindful of their health and safety duties towards employees, contractors, agency staff, visitors and clients. Slips, trips and falls are the cause of most accidents in the office and are often a result of the condition of floors, poor lighting or untidiness. Christmas decorations may be permitted as long as workplaces are kept tidy, trailing leads which create tripping hazards are avoided and passageways or corridors are kept clear. Staff should also be reminded to avoid overloading sockets by minimising the use of adaptors and to switch off equipment when it is not in use.
Q. We've had a bad year and can't afford to provide the usual Christmas bonus. Is this a problem?
A. There is a risk that staff benefits such as Christmas bonuses become part of employees' terms and conditions of employment, implied through custom and practice. Whether or not this is the case involves looking at the intention of the parties, whether past practice has established that a Christmas bonus is always provided (and is therefore reasonably expected), or whether it is clear that the benefit is discretionary and depends on the success of the business during the year. If providing a Christmas bonus becomes implied through custom and practice, a failure to provide one may amount to a breach of contract. However, if staff clearly understand that the Christmas bonus is a discretionary benefit depending on the success of the business, this will not become part of the terms and conditions of employment simply because it has been provided for a number of years.
Q. Can we refuse a request for holiday over the Christmas period?
A. The starting point for employers should be the operation of a clear and reasonable leave procedure, requiring that staff give sufficient advance notice of a leave request and allowing for a degree of flexibility depending upon the circumstances. It may be that the employee failed to give sufficient notice of their request for holiday, in which case a refusal may be justified. Alternatively, it may be that the employee has so far been unable to take their full entitlement in the year, in which case a refusal could be unreasonable and risk placing an employer in breach of their obligations regarding working time.
Employers should be mindful to ensure that they do not disadvantage those with a specific religion or belief. If an employee has requested leave because of their Christian beliefs, a refusal to grant their request may be discriminatory unless there is a legitimate business need. In the case of a lack of available staff, all leave requests may need to be treated on an equal basis, for example, by operating a lottery for leave and allowing carry over and priority for the 'losers'.
Q. What happens if an employee requests time off to celebrate other religious festivals?
A. Employers should consider any request for leave where it is reasonable and practical for the individual to be away from work and they have sufficient holiday to cover the request. Again, employers should be mindful to ensure that they do not disadvantage those with a specific religion or belief, be careful regarding any criteria applied to decide who should and should not be given leave and balance the needs of their business as well as those of their staff.
Where an employee claims to have been denied their right to paid annual leave, the employer should try to resolve the dispute informally. If this is not possible, the employee may choose to raise the issue as a grievance, at which point the employer should follow an appropriate grievance procedure to deal with the complaint. Ultimately, if the issue is not resolved to the employee's satisfaction, they may choose to pursue a claim in the employment tribunal.
Q. We would like to close the office over the Christmas period. Can we ask employees who do not celebrate Christmas to use their holiday entitlement?
A. Employers are able to set the times when staff are permitted to take their leave, but need to consider whether this discriminates against some members of staff on the grounds of their religion or belief. For example, a Christmas closure may prevent individuals from taking leave at times of specific religious significance to them, in which case arrangements may need to allow for these individuals to form a skeleton staff over Christmas or take additional time off on their preferred dates.
Again, employers must balance the needs of their business and those of the staff. If a Christmas closure disadvantages members of staff with a particular religion or belief, the employer must show that the closure is a proportionate means of achieving a legitimate aim. For example, an agency may be justified in closing its business over Christmas if traditionally its clients are all closed over Christmas and there is no work that can be done on those accounts in the client's absence. Before taking this decision, employers should consider the impact that forcing employees to use their holiday entitlement over Christmas will have from an employment relations point of view.