The Sherrards Blog: Employment Law

Merry Christmas, One and All?

12th December 2016

Christmas is nearly upon us and, in time honoured tradition, festivities are taking place in most workplaces, including office parties, Secret Santa presents and gifts from suppliers.

Generally, the season passes by in a blur of tinsel and mince pies, without any incident or complaint … at which point, HR professionals across the country breathe a huge sigh of relief.

There are many blogs and articles that have been written in Christmasses past by employment lawyers warning of the pitfalls of Christmas. We do not propose to rehash those. However, we thought it might be useful to produce a gentle reminder of any pinch-points that HR professionals ought to keep in mind, to make sure that the New Year doesn’t bring with it a Tribunal claim.

Christmas party

  • Christmas Office Parties – the most obvious of all the risk areas. Although the law in this area can turn on relatively small points, it is safest to proceed on the assumption that the employer will be liable for anything that happens at a Christmas party. To minimise risk, make sure that communications are sent out in advance about what is or what is not acceptable behaviour, and keep an eye on what is going on so that any trouble that might be brewing can be nipped in the bud. Be aware that you may be limited in what action you can take following the event, particularly if there was a free bar – the Tribunal may determine (as they did in one case) that the employer effectively sanctioned the behaviour, thus making any dismissal potentially unfair. Making it clear beforehand what is or is not acceptable will help you in this regard.
  • Post-party Gatherings – the risk doesn’t stop at the end of the party. If there is an organised gathering of people from work, there is a chance that any incidents that take place might be deemed to be during the “course of employment” and thus leave the employer liable. This isn’t always clear-cut, though, and a recent case determined that an assault that took place during a post-party gathering (at 3am the following morning, in a hotel bar) did not leave the employer liable. The test is likely to be how proximate the incident was to a work-organised event.
  • Relationships – the office party might lead to the creation of some internal relationships. If your company has a relationship policy, make sure this is widely available and the effect of the policy is well known. Be careful when dealing with any post-party fallout, to ensure that all participants are treated fairly (and in a non-discriminatory way).
  • Bribery – at this time of year, suppliers and contacts often send Christmas gifts or offer hospitality. Usually, this is fairly low value but be careful to ensure that staff are aware of what is and is not acceptable, so as not to be in breach of the provisions of the Bribery Act 2010. Make sure your policy is up-to-date and distributed to staff.
  • Christmas Bonuses – some employers pay staff a Christmas bonus. Make sure that employees absent on family or sick leave are treated in line with the current state of the law. Whether the employee is entitled to all or part of the bonus largely depends on the reason why the bonus is paid and how it is calculated. Certainly, a “flat rate” bonus, regardless of individual contribution/performance or remuneration, ought to be paid to all staff, even those on leave.
  • Overtime – a recent Tribunal case confirmed that an employer acted fairly in dismissing an employee who refused to do overtime in the run-up to Christmas, and acted in a disruptive way when registering her protest to the overtime. The employer in that case had a contractual right to require the employee to do the overtime, and she had no legitimate reason for refusing to work it.
  • Religious Issues – employers need to be careful to ensure that their practices in relation to Christmas, which is fundamentally a Christian celebration, do not inadvertently discriminate against either Christians or other religions. Any difference in treatment must be shown to be a proportionate means of achieving a legitimate aim.
  • Holidays Over Christmas – there is no right for employees to insist on taking holiday over Christmas. Provided that the employer’s refusal to agree to a leave request doesn’t have the effect of preventing an employee from taking their annual entitlement to leave, then the employer may legitimately refuse the request. However, if the request is refused and the employee then fails to attend work, the employer must be careful to ensure that any discipline is proportionate. In one case, an employee who failed to attend work without permission on Christmas Eve was found to have been unfairly dismissed on the basis that the penalty was disproportionate in the circumstances.

Thankfully, claims are rare but, with a little risk management in advance, your chances of being the unlucky recipient of an ET1 should be minimised. If you need any support or guidance, either before or after the festive season, please call one of our elves (otherwise known as our team of Employment lawyers).

Until then, Merry Christmas!!

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Jo Perry

About Jo Perry

Joanne advises on all aspects of contentious and non-contentious employment law, with a particular interest in discrimination and restrictive covenant issues. Joanne’s area...

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