The season to be jolly is once more upon us, but employers should be mindful of the legal issues that can arise over the festive period. Without wanting to be 'bah humbug', it's not only the office Christmas party that can cause problems for employers.
The Christmas party
From late November into December restaurants, pubs and hotels will be welcoming partying employees with open arms. Employers and employees alike will see this as an opportunity to celebrate after what may have been a long and difficult year.
For employers however striking a balance between ensuring that everyone has a good time whilst keeping employees' fun and frolics under control can be an almost impossible task. The biggest problem for employers is the possibility of complaints of sexual harassment or other discrimination claims. Work-related functions such as Christmas parties are within the course of employment even if they take place after hours and away from the workplace. Employers could therefore find themselves liable for the drunken and unwanted amorous advances of their employees towards each other or inappropriate jokes and banter.
Other important considerations regarding the Christmas party include:
- whether the date, time or place chosen prevents some individuals attending, such as on religious grounds or because the venue is not accessible to a disabled employee
- whether there is food and non-alcoholic drink available which meets employees' religious and cultural requirements
- whether appropriate health and safety measures are in place to protect employees at the end of the night such as access to transport both to and from the venue
Many employers will have specific policies dealing with both conduct at work (making it clear that disorderly conduct at work events will be treated as gross misconduct) and alcohol and substance abuse. However, it is also important to have a clear policy setting out "ground rules" for the Christmas party. This should avoid any misunderstanding about the event itself and provide clarity of what is expected of all employees and the consequences of any inappropriate behaviour. With planning and clear communication the issues highlighted above can be minimised or avoided altogether.
With extreme weather becoming a more common occurrence, and this year being set to be a cold one, employers need to understand their rights and obligations where employees are unable to get into work due to bad weather. Good employment practice would be to make it clear to all employees what policy will be adopted in situations of adverse weather, including matters regarding payment to non-attending employees, the use of holiday entitlement in the event of adverse weather and the employer's position with regard to the use of unpaid leave.
Employers should consider introducing an adverse weather policy and ensuring that this is adequately communicated to all employees ahead of any further adverse weather conditions. In particular, the policy should:
- remind employees of the importance of following the absence reporting procedure
- encourage employees to speak to their managers straight away if they have any concerns about travelling in adverse weather conditions
- urge employees to take particular care with journeys whilst conditions are bad
- remind employees that they could be subject to disciplinary action if they do not make reasonable attempts to get into work
Employers should also use this time to ensure appropriate IT is installed and additional software licenses are in place in case home working is required as well as to making sure employee contact details are up to date and that they have agreed with employees the best way to contact them.
It is also worth remembering that an employer will only have the right to withhold pay if an employee's absence is unauthorised and the terms of the employee's contract of employment and surrounding circumstances will need to be carefully considered.
Traditionally many employers have given a one-off bonus at Christmas (rather than the gift of a turkey). With 2014 still being a difficult year a number of employers may be considering not paying some, or even all, staff a bonus. Such a decision doesn't come without its health warnings and employers will need to consider carefully their proposals before implementing them and act consistently thereafter to avoid potential claims of discrimination. Reasons for not paying a Christmas bonus should be clearly reasoned and documented to avoid allegations of discriminatory treatment.
When deciding whether or not to pay a Christmas bonus employers will need to establish whether their employees have a contractual right to be paid a bonus and, if so, the nature (and amount) of that right. Where the contract of employment states that the employee does have such a right employers should comply with the terms of the contract or face claims for breach of contract in the new year. Even where there is no express term in the contract relating to payment of a Christmas bonus, employers need to be mindful of any historic and regular payments (and the amounts) of bonus at Christmas. Through custom and practice employees may have a reasonable expectation that they will receive a bonus this Christmas and for years to come. Failure to satisfy this implied contractual term will again see employers having to defend claims of breach of contract.
Where Christmas bonus payments are going to be offered this year, employers should make clear that the one off payment of bonus is entirely at their discretion as is the amount. Where the offer and amount is discretionary (and the amount is ideally varied each year), there will be greater scope for avoiding or reducing the payments in years to come.
Whilst trying not to put a dampener on the festive period, employers are encouraged to consider the needs of all staff at Christmas. What might be a celebrated period for some will not be the case for others due to their religious beliefs and employers should be sensitive to this.
On a positive note however from all of us a Shoosmiths we wish you all a very merry Christmas and a happy new year.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.