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12 Myths Of An Employer's Christmas

As the festive season is now upon us and we begin counting down to Christmas Day,  we would like to take you through 12 myths of an employer’s Christmas……..

Day One

Provided the Office Christmas Party is held off-site and out of hours the company isn’t liable for its employees’ drunken shenanigans. 

Just because a work event is out of hours, off-site, organised by staff as opposed to management does not necessarily mean the organisation has no responsibility for unlawful acts that take place at the event.
Employers can take a number of steps to protect the business against potential claims when an employee’s behaviour oversteps the mark at office parties. Such steps include:

The sending of a global communication to all staff reminding them they are representing the organisation despite the event being off-site and/or out of working hours, and that the organisation’s policies apply,

Taking seriously allegations of inappropriate behaviour at the party and handle it as you would if the allegation arose during normal working time. For example, investigations should be thorough and appropriate procedures followed.

Day Two

I only need to award Christmas bonuses as I see fit.

There are two types of bonus scheme, discretionary and contractual. Provided that the terms of a discretionary scheme are clearly set out, an employer will be entitled to exercise discretion to withhold payment of a bonus as long as it is not acting irrationally or perversely in so doing.
By contrast, if a bonus agreed under a contractual basis is not paid, despite the criteria for payment being met, an employee can apply to an employment tribunal for unlawful deductions of wages. The criteria applied to either sort of bonus scheme should not be discriminatory, for example it is important to avoid criteria that might discriminate against women who have been absent on maternity leave.

Day Three

I have to agree all festive holiday requests.

No! Employers and workers can agree notice arrangements for annual leave.
In the absence of a relevant agreement or a provision in the worker’s contract of employment, under reg.15 of the Working Time Regulations 1998 (SI 1998/1833) the notice period that a worker must give to take annual leave should be at least twice the period of leave to be taken. For example, if a worker wishes to take one week’s annual leave, he or she must give the employer at least two weeks’ notice.
The employer is entitled to refuse the worker permission to take the annual leave requested, provided that it gives notice equivalent to the period of leave requested. In this example, the employer would be required to give one week’s notice.
Employers are not required to give reasons for refusing holiday requests, although doing so is good practice. Requests are most frequently refused where a number of other workers have already applied to take the same period off, or where the time requested is during a peak business period when the worker’s services are required.
In turning down a holiday request, the employer must always have regard to the duty of mutual trust and confidence that exists between it and the employee. This essentially means that requests should be turned down in good faith and on reasonable grounds, not simply on an arbitrary basis. If a request is declined, the worker must be permitted to take the leave at a later point during the leave year.

Day Four

Although I have traditionally given my employees a Christmas hamper I don’t have to this year.

If you have traditionally given your employees a hamper without having made it clear its provision is not guaranteed, over time it may be possible for them to argue this “gift” has, in law, become a contractual benefit.
To avoid the unwanted present of a claim, in the event you decide to review this tradition, it makes sense that you explain to your staff why you feel you are unable to continue giving a hamper. A halfway house for this year is to consider providing a less expensive hamper after explaining to employees why this type of cutback has become necessary and it may not be continued in the future; this paves the way for its complete removal in future years.

Day Five

I don’t need to issue temporary Christmas staff with a contract if they are employed for less than 2 months.

 If temporary employment is to continue for more than one month, an employer is obliged to provide an employee with a written statement setting out a prescribed list of their terms of employment.
The prescribed list includes terms relating to salary, place of work, holidays, illness and pensions. This applies even if that employment is temporary and lasts for less than two months.
Even in cases of short-term contracts, the role may require the disclosure of the business’ confidential information to the temporary employee. In this scenario the employer will be wise to include appropriate confidential information obligations which are designed to survive after the employment has ended.
It is also important for the contract to carefully deal with the end date and how this is intended to operate.
Failure to issue a written statement of terms can give rise to an award of compensation.

Day Six

I have to pay part-time employees for those festive bank holidays which fall on their non-working days.

Believe it or not, the law is still unclear on this point!
Strictly speaking, assuming part-time employees have an entitlement to time off on public and bank holidays, employers only need to allow part-time workers paid time off (or time off in lieu) for those public and bank holidays that fall on days when they would normally work.
However, employers need to be aware that adopting this position may raise issues under the Part-time Workers Regulations. Accordingly this approach, whilst possible, should be approached with some caution.

Day Seven

I can insist my employees use their holiday entitlement during festive closures.

Increasingly, businesses are deciding to close over the Christmas period which requires employees to take some of their holiday entitlement at the employer’s direction. Under the Working Time Regulations, this is legally permissible as long as the employer gives notice that is at least double the period of leave that the employee is required to take. However, this can give rise to a number of issues, not least what happens if the employee has insufficient leave entitlement remaining to cover the closure in the event the notice is issued close to the closure period.
For this reason, if it is the case your business typically closes during the festive period, it is strongly recommended that the employment contracts and holiday policy reflect the ability for the business to direct the employee to take holiday on specified days at its discretion.

Day Eight

I can’t retain temporary Christmas staff once their fixed term contract expires.

The good news is you can!
There is one simple matter to keep in mind though if it is the case you are able to keep staff on after the Christmas period and therefore beyond the expiry date of their fixed-term contract. Since the original fixed term will have ended then you should agree new terms to govern the employment.
It may be the case you agree a short extension and the contract will continue on the same terms as before until the new agreed date is reached. However, where nothing is said about the period of the extension, the likely implication is that the employee would be employed for an indefinite rather than a fixed term which can, in the longer term, cause some issues.

Day Nine

I must pay my staff extra for working over the Christmas period.

Providing there is no previously set precedent or express contractual entitlement, while some employers may wish to pay ‘time and a half’ or ‘double pay’ to employees for working on a Christmas bank holiday as an incentive, this is entirely at the discretion of the employer.
Employees have no statutory right to receive extra pay during the Christmas period and all pay should conform to the employee’s contract of employment.

Day Ten

I cannot insist that my Christian employees work on Christmas Day.

Strictly speaking, employees whose contracts provide that they are to work on bank holidays, cannot refuse to work on Christmas Day even for religious reasons. However, before insisting any Christian employees work Christmas Day, do be aware of your obligations under the Equality Act 2010. The Equality Act 2010, protects workers against direct and indirect discrimination on a number of grounds including grounds of religion, religious belief or philosophical belief.
Under the Equality Act 2010, refusing employees time off for religious observance, can amount to indirect discrimination. It is, though, possible to avoid a finding of unlawful behaviour if the indirect discrimination can be justified. Before insisting Christian employees work on Christmas Day, you should ensure you can demonstrate a compelling business reason for refusing any request for leave for religious observance.

Day Eleven

I can refuse to pay an employee for an unauthorised absence the day after the Christmas party.

The contract of employment is the starting point for any employer wishing to make deductions form an employee’s salary for any reason. Contracts will need to include carefully drafted clauses which specify when deductions are made, including the right to deduct when turning up late for work.
Even where such a clause exists, employers should still approach the matter with caution to ensure there is no inadvertent breach of the employee’s rights including rights under the Equality Act 2010. For this reason, many employers will elect to use the disciplinary procedure for dealing with late attendance as opposed to making a deduction.
Ultimately, whichever option is applied, it should be applied consistently to all employees.

Day Twelve

I must allow my employees time off on all public holidays which fall during the festive period.

There is no statutory right for employees to take bank holidays off work. Any right to time off, payment for time off or extra pay for bank holidays worked depends on the terms of the employee’s contract of employment. Therefore, unless the contract expressly gives the employee the right to take the public holidays, an employer does not have to allow time off on these days.
In the event an employee refuses to work on the public holiday, an employer can treat this as a disciplinary matter and apply its disciplinary process. At the very least, the process should consist of an investigation, a disciplinary hearing and an appeal against any disciplinary action taken.