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Christmas Conundrums for Employers

Reasons to choose Wilson Browne

The Christmas season is on its way and it brings a plethora of challenges for HR Professionals and their Employers.

With this in mind our experienced Employment team have put together their Christmas conundrums for employers to ensure you and your organisation comply with the law throughout the festive season.

If you have a conundrum that’s not on the list, give the team a call and they’ll be happy to help.

1. Do I 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.

2. Can I 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.

3. Everyone wants holiday at Christmas. Do I need to agree it all?

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.

Do you have a rota? If you had last Christmas you don’t take this Christmas. Make sure staff are aware of this. Staff are less likely to feel resentful if they know the system in advance.

What about a ballot? Names in a hat and first XX pulled out get the time off. It would not be seen as fair if the same name(s) came out year after year.

First come, first serve? First people to put the request in get the holiday. It would encourage people to make requests earlier and those who always wait to the last minute to book would miss out. Staff could feel resentful and new staff could miss out.

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.

Get your staff to decide amongst themselves. This can give a sense of control back to the staff and if they can agree between them what cover is needed they have a sense of responsibility.

4. Do 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.

Given this lack of clarity some employers therefore decide to pay part-time workers to take all public holidays that fall on their days off even though this may effectively mean those part-time employees have a greater overall holiday entitlement than their full-time colleagues.

5. Should I take into account non-work commitments when considering the timing and location of the Christmas party?

Think about the staff in your organisation.

  • Would a lunchtime event be better for those with childcare responsibilities or those who have a long commute?
  • Is an event in a pub with lots of alcohol appropriate if you have lots of staff who do not drink alcohol?

6. Should I put things into place to ensure appropriate conduct of staff at Christmas parties?

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.

7. Do I have to 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

8. Traditionally I have given my employees a Christmas hamper. Do I have to do that this year?

Have you done this for a number of years? If so, employees could argue that it has become a contractual right – that this “gift” has, in law, become contractual. Employees may have come to expect a hamper if no indication has previously been given that this is not guaranteed.

Should you decide to review this tradition that are two options – one, explain to staff why you cannot provide a hamper or – two, maybe look at a less expensive option (be that a smaller hamper or alternative gift) and explain why where is a cutback.

9. Does accepting a Christmas gift from a supplier count as a bribe?

In many industries it is common for suppliers you have had contact with during the year to give gifts at Christmas. This is likely to be acceptable, however do check if there are specific company terms regarding the receipt of gifts. You should act at all times in the company’s interests in dealings with suppliers and not be influenced by gifts. Do you have a company policy for logging any gifts that are received from suppliers/clients?

Make sure that you, and your employees are familiar with your current policy on gifts, hospitality and so on, and to follow it to the letter.

Make sure if any gifts that could be deemed “income” by HM Revenue and Customs are noted as they would be taxable.

10. Can you dock the pay of any employee who arrives late at work the morning after the Christmas party?

If you want to make deductions from employees’ pay then the right to do this should be in the contract. As an alternative get them to sign a separate document in advance of the party that indicates their agreement to a quantifiable deduction being made in these circumstances.

Another course of action is to make it clear to staff in advance of the Christmas party that disciplinary action will be taken against an employee/employees who fail to turn up or turn up late the morning after the party where there is reason to believe it is related to the over consumption of alcohol.

Ultimately, whichever option is applied, it should be applied consistently to all employees.

Make sure there are plenty of non-alcoholic beverages available at the party. This is beneficial to those who do not drink and those who may want some alcohol but have other options too.

11. Do I need to award Christmas bonuses? Can I award 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.

12. Can I dismiss an employee who is found to be driving under the influence of drugs and/or alcohol?

We are all aware of the law surrounding driving under the influence of alcohol. However, a drug drive law came into force in England and Wales in March 2015. This law, which applies to illegal drugs, over-the-counter medicines AND prescription medicines, made it an offence to drive, attempt to drive, or be in charge of a motor vehicle when you have above a specified limit of drugs in your body.

It is mandatory to receive a disqualification from driving when driving or attempting to drive when under the influence. However, even if an employee drives as part of their role, this does not mean it is an automatically fair reason for dismissal.

Check what the employment contract says.

  • Does it stipulate that an employee must tell you straight away about a drink or drug driving conviction? Sometimes this requirement is included however other contracts remain silent.
  • Does driving for company business form a significant part of the employee’s role? If so, you may need to consider initiating a procedure on the grounds of ‘some other substantial reason,’ in that they are unable to fulfil the duties that they are required to perform.

If the employee is covered by your fleet insurance, you must contact your insurers to confirm if the employee is able to continue driving on the policy, pending the outcome of their case.

It is possible to dismiss an employee who is facing or has a drink or drug driving conviction. A variety of factors should be taken into account, including what their job constituted. Do they need to drive for their role? If not, and can get to work by other means, there would be no need to dismiss. Can other arrangements be made if driving is only a small part of the role? Can they undertake another role within the company for the period concerned?

Before dismissing someone who drives for their role you should consider if they can be seconded to another role during duration of the ban or if they have an alternative way of attending any appointments.

If this is not possible, you will have to invoke an appropriate formal procedure that is unique to the circumstances. It is highly recommended that you seek specialist legal advice if you are faced with this situation.

Nikita Shergill

Posted:

Nikita Shergill

Solicitor

Nikita is a Solicitor with the Employment team. She specialises in all aspects of employment law and routinely acts for both private sector organisations ranging from SMEs to multi-national companies and public sector organisations.