5 December 2016

Christmas in the workplace – how well are you managing the festive season?

Ashok Kanani sets out some essentials for you to consider.

Workplace Christmas parties bring up issues of conduct and discrimination. For example, employees may misbehave, or employers may have to make adjustments to Christmas parties for employees of different religions. 

Holiday issues also commonly arise at this time. Annual leave requests can be concentrated around the same days, with employers' plans to open their business during bank holidays often conflicting with employees' personal plans.

1. What should employers do to prepare for the festive season?

All managers should familiarise themselves with their employer's policy on Christmas parties or work-related social events.

Additionally, employers should consider the option of issuing a statement to employees in advance of a Christmas party or similar work-related event. This statement can remind employees of conduct matters, including the dangers of excess alcohol consumption, and behaviours that could be viewed as harassment.

Not got a Policy or a Statement - speak to your Regional HR Adviser now!

2. Do employers really need a policy on workplace social events?

Yes. Employers should maintain a policy because they have a duty of care towards staff, and as a matter of good practice.

The Equality Act 2010 makes employers liable for acts of discrimination, harassment and victimisation carried out by their employees in the course of employment, unless they can show that they took reasonable steps to prevent such acts.

3. Is an employer responsible for what happens at a Christmas party?

It is prudent to assume that an employer will be liable. Legislation refers to the term "in the course of employment".

In the case Chief Constable of the Lincolnshire Police v Stubbs and others, a police officer complained of sexual harassment by work colleagues in a pub outside working hours.

The Employment Appeal Tribunal held that social events away from the police station involving officers from work either immediately after work, or for an organised leaving party fell within the remit of "course of employment".

4. Can employees be disciplined for misconduct after a Christmas party?

Yes, if the incident is sufficiently closely connected to work to have had an impact on the working situation.

In the Gimson v Display By Design Ltd, the employer was found to have fairly dismissed an employee for a brawl after the end of a Christmas party.

5. Is it okay to offer a free bar at a Christmas party?

A free bar will undoubtedly be a morale booster for staff, but employers need to be aware of the dangers of providing an unlimited free bar.

In the Williams and others v Whitbread Beer Co, three employees at a seminar who were dismissed because they drank at the free bar provided by the company and ended up in a drunken, abusive and violent state were found to have been unfairly dismissed.

The unlimited free bar provided by the employer was an important factor in determining whether or not the dismissal was fair.

6. Do Christmas festivities discriminate against those of other religions?

It is unlikely that holding a Christmas party would in itself be seen as religious discrimination because generally these parties are more about having a staff get-together and boosting morale than celebrating religion.

Employers should keep a policy on religious observance during working hours and be supportive towards employees whose religious festivals fall at different times of the year.

7. Can an employee insist on taking holidays during the Christmas period?

No. In the absence of an agreement to the contrary, workers must give notice equal to twice the length of the holiday that they wish to take.

The employer can then give counter notice requiring that the leave not be taken, so long as this counter notice is equivalent to the length of the holiday requested, and the worker is not prevented from taking the leave to which he or she is entitled in that holiday year.

Where an employee has accrued untaken leave and gives reasonable notice to the employer to take the leave, the employer must have valid business reasons for refusing the employee's request to take leave.

Where an employee insists on taking leave and does so without approval, the employer should approach the issue sensibly and be careful not to impose a disproportionate penalty on the employee.

In the Stott v Next Retail Ltd, an employee who was dismissed for failing to attend work without permission on Christmas Eve was found to have been unfairly dismissed by an employment tribunal.

8. What if an employee comes to work late or not at all the day after the Christmas party?

An employer can make deductions from employees' pay if they turn up for work late the morning after the company Christmas party, as long as the right to make deductions from wages for unauthorised absence is reserved in the employment contract.

If disciplinary action is to be taken for lateness or non-attendance after the Christmas party, employers should ensure that staff are informed that this is a possibility in the disciplinary policy.

Where an employee does not attend due to illness, the employer should follow its attendance management policy and procedures.

9. Can employers compel their employees to work bank holidays?

There is no statutory right to time off during bank holidays. This depends on the contractual arrangements regarding bank holiday working.

Further, there is no statutory requirement to pay staff extra for bank holiday working, but employers should observe contractual terms or custom and practice regarding pay rates.

10. What if a Christian employee refuses to work on Christmas bank holidays?

Employers should be aware of their obligations under the Equality Act 2010, which protects workers against direct and indirect discrimination because of their religion.

While employees do not have the explicit right to time off for religious observance, a refusal to grant Christian employees time off for any of the bank holidays with religious significance could amount to indirect religious discrimination.

Speak to your Regional HR Adviser if you do not have a policy on religious holidays.

Source Ashok Kanani, XpertHR, November 2015