Joanne Kavanagh looks at potential employment issues that can arise over the festive period.
The Christmas period is a time of celebration and relaxation, but as an employer there are still dangers to beware of.
The Christmas party
Christmas parties generally provide a bit of well deserved light relief to employees. However sometimes things don’t go according to plan and excessive alcohol in particular can lead to undesirable behaviour and difficult situations. The party (and potentially the trip home) is likely to come within the scope of your employees’ employment and so as the employer you may be liable for any claims of sexual harassment that may erupt.
Harassment is a very broad concept and can cover one off remarks. Jokes about a person’s age or sexual orientation or, pictures of the party on Facebook, that may be considered by the protagonist, fuelled by the occasion, to be nothing serious, could be perceived as offensive to the recipient and amount to unlawful harassment. This may lead to the employee going off sick with stress or perhaps filing a grievance and in a worst case scenario where particular offence is caused filing a tribunal claim.
You don’t want to spoil the fun but a short email reminding all the team about expected standards of behaviour at this work related event, and perhaps limiting the free bar, may be appropriate. You should also ensure that your practice has an equal opportunities policy and social media policy setting out that discrimination and posting derogatory comments on networking sites can lead to disciplinary proceedings.
Refusal to work over Christmas
In a recent tribunal case an employee told his employer on December 17 that he would not be working rostered on call hours over Christmas Eve and Christmas Day, because this would mean staying at his mother in law’s which apparently “he had a difficulty with”. His dismissal was held to be fair by an employment tribunal because he had known of the roster since February and so had plenty of time to raise any difficulties and he was aware refusal to work could lead to his dismissal.
Issue any on call or other christmas roster, as far in advance as possible with a written explanation of the importance of the employee covering the hours and confirming that unreasonable failure to comply could lead to disciplinary action up to and including dismissal.
Christmas bonus
Are you obliged to pay a Christmas bonus because you did so the previous year? If your contracts state that payment of the bonus and/or the amount you pay is discretionary then you can exercise your discretion and decide not to pay or pay less than last year.
If on the other hand, your employees’ contracts of employment state that they will receive a Christmas bonus or if it is custom and practice in your surgery to do so, then you will be breaching the contract of employment if you fail to pay up.
Payment of a bonus to some employees and not others may also be discriminatory. Often such payments are of limited value and so the risk is of upsetting employees rather than tribunal claims (unless of course an employee has other complaints against you).
If you cannot pay a contractual Christmas bonus rather than just failing to tell employees anything, you should explain why the bonus is not being paid or will only be paid to some employees. This will encourage your employees to have trust and confidence in you.
Competing holiday requests
To avoid complaints that your rejection of a holiday request is discriminatory and unfair, make your decision based on who worked the previous year or on a first come first served basis. Inform staff of your policy for booking holiday over Christmas to show consistency. Be wary of rejecting a holiday application where it would have a detrimental impact on for example, those who are seeking holiday because of religion or belief or, those who have childcare obligations.
The great freeze
Is it possible to stop an employee's pay if they can’t get into work because of the weather? Docking pay may be lawful in some situations, but it can breed resentment and be divisive if the employee genuinely cannot get into work. Rather than being seen as a ‘Scrooge’ employer you could make alternative arrangements such as allowing employees to work from home or make up the time or to take holiday. You should also recognise those who do struggle in.