It’s the time of year for festive cheer, but unfortunately Christmas can also prove to be a real HR headache. This article dispels some of the employment myths that circulate at this time of year.
1. Christmas decorations should not be permitted
Christmas decorations are seen as a fun part of Christmas festivities, and it is unsurprising that many employees choose to decorate their working areas.
It is a common misconception that Christmas decorations breach health and safety rules. As long as a proper risk assessment is carried out, employers will not normally fall foul of health and safety rules. However, employers should be aware that improper use of decorations or failure to properly test electrical equipment may negate insurance cover in the event of accidents. To avoid problems it is sensible to communicate what decorations are permitted and any conditions for displaying them ie using battery operated devices only. Employees should also be reminded that offensive decorations are not permitted.
2. Competing holiday requests at Christmas all have to be approved
During the festive period, it is usual for employees to request the same days as annual leave. Unless the business operates a Christmas shutdown, it will usually be operationally impossible to accommodate all requests, which may necessitate the business choosing which requests to approve and which to decline.
First come first served can be an objective basis for deciding how holiday should be allocated, but it is not without difficulty. There may be circumstances where an employer may need to deviate from this, for example where Christian employees request annual leave to observe religious festivities. However, it can be a good starting point before other factors are taken into consideration and a final decision is made.
3. Seasonal staff don’t get annual leave
It’s tempting to think that temporary Christmas workers are not entitled to any annual leave, but this is incorrect. Under the working time legislation, all workers are legally entitled to 5.6 weeks’ paid holiday per year, pro rata if they do not work a full year. Temporary staff should therefore be allowed to take holiday during their engagement and should be paid in respect of any unused holiday on termination.
4. There’s a legal right to have Christmas Day off
Many employers assume that bank holidays are an automatic leave day for all employees, but in reality there is no legal entitlement for employees to take annual leave on bank holidays unless their contract expressly says so.
5. Staff have to be paid double time for working on Christmas Day
Subject to any contractual entitlement, there is no legal requirement to provide enhanced pay to employees who work on Christmas day or any other bank holiday.
6. What happens at the Christmas party, stays at the Christmas party
It is a common misconception that employers are not liable for the actions of their employees during work events such as Christmas parties, particularly where the party takes place away from the workplace or outside working hours.
There have been a number of cases in recent years which confirm that employers can be held vicariously liable for the actions of their employees at Christmas parties. Whether the employer is liable depends on whether there is sufficient connection between what happened and the employer, such that the actions can be said to have been done ‘in the course of employment’.
It is safest for employers to assume that they will be held liable for the actions of their employees during Christmas parties and plan accordingly. Actions to minimise misbehaviour could include carrying out a risk assessment, setting limits to the amount of alcohol that will be provided and communicating with employees in advance to confirm the standards of behaviour expected and the fact that the disciplinary process will be followed if necessary.
7. Employees who are absent from the business should not be invited to Christmas parties
It’s rare for absent employees ie those on sick leave or maternity leave to be deliberately excluded from Christmas events, but it is common for these individuals to be overlooked, particularly where they have been absent for some time. Employers should not assume that absent employees will not attend the party and should therefore take care to ensure that they are invited to avoid any possible discrimination claims.
8. We can dock pay if employees arrive to work late after the Christmas party
It is unlawful for an employer to make a deduction from a worker’s wages unless the deduction is authorised by law or their contract, or the worker has given their prior written consent. The employer should be clear about their expectations regarding absence the day after the Christmas party, ensuring all staff know what the consequences will be for latecomers. It is also sensible to check there is a right to make deductions in such circumstances within the employment contracts and/or obtain written consent before making any deductions.
9. There’s no requirement to pay employees a Christmas bonus
Where an employee’s contract sets out an entitlement to a Christmas bonus, and any criteria for payment of that bonus has been met, employees will have a potential claim for unlawful deductions from wages if their bonus isn’t paid. Additionally, employers should be aware that if employees have regularly received a Christmas bonus in previous years, they might argue that the bonus has become a contractual right as a result of custom and practice.
By contrast, provided that the terms of the scheme are clearly discretionary, an employer will be entitled to exercise its discretion not to pay a Christmas bonus so long as it is not acting irrationally or perversely. In withholding the bonus, the employer should also take care that the decision is not potentially discriminatory – for example, if some employees receive a bonus while others do not.
10. Secret Santas are an HR nightmare and should be discouraged
It is common for employees to arrange unofficial Secret Santa gift exchanges in their teams. Generally these are well received, but it is not unusual for individuals buy a present that is hilarious to onlookers but inappropriate and/or offensive to the recipient.
Harassment occurs where a person engages in unwanted conduct towards an individual which is related to a protected characteristic such as disability, gender or religion), which has the purpose or effect of either violating the individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.
Article by Shoosmiths LLP – Laura Wright and Antonia Blackwell