This time of year can prove a minefield of HR challenges from Christmas parties to overtime and working hours. Employers in both the private and public sector need to be prepared as workplace festivities can result in issues of misconduct and discrimination.

Key areas for employers to focus on are:

Policies & Procedures

Employers have a duty of care towards staff and The Equality Act 2010 makes employers liable for acts of discrimination, harassment and victimisation. It is advisable to have in place clear rules and policy on work-related social events and ensure managers familiarise themselves. Issue a statement to staff before an event reminding them of conduct, the dangers of excess alcohol consumption, and behaviours that could be viewed as harassment.

Employer Responsibility

It is prudent to assume that an employer will be liable for actions towards an employee at a Christmas party as the case of Chief Constable of the Lincolnshire Police v Stubbs and other demonstrates. In this instance, 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” referred to in The Equality Act 2010.

As a result, The Chief Constable of the constabulary to which the police officers were originally appointed was held vicariously liable for acts of sex discrimination committed by his officers during the “course of employment.”

It is therefore advised to assume the same would be the case for any incidents at an office Christmas party, whether it is taking place onsite or off.

Employees’ actions after the work’s Christmas party

An employee can be disciplined for misconduct if an incident is sufficiently closely connected to work to have had an impact on the working situation.

Multiple employees involved in an incident.

Establishing “who is to blame”, however, can be difficult where memories are blurred by alcohol and the evidence is unclear. In this case, all employees must generally be treated the same in relation to suspensions and disciplinary processes.

For example, in the case of Westlake v ZSL London Zoo, two zoo keepers got into a fight at London Zoo’s Christmas party as a result of which Ms Westlake was dismissed and the other zoo keeper, Ms Sanders, was issued with a final written warning. There was a lack of clear evidence as to who started the fight. The Employment Tribunal found Ms Westlake’s dismissal to be unfair.

The Employment Tribunal took the view that the employer could have legitimately dismissed them both, or issued both with final written warnings.

Overtime at Christmas

Employers will often require employees to work overtime during the festive period, particularly those who work in retail, hospitality, and couriers. This can sometime cause issues with not wishing to do so.

If a contract of employment includes a clause requiring an employee to work overtime when required, then it will generally be reasonable to take disciplinary action if an employee refuses to do so at Christmas.

Holidays at Christmas

Firstly, an employee cannot insist on taking holidays during Christmas. Workers must give notice equal to twice the length of the holiday that they wish to take unless there is an agreement to the contrary. An 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 be careful not to impose a disproportionate penalty.

We do recommend you have a written holiday policy in place to refer to in these situations.

Absence & Christmas

With the combination of festive celebrations and colder and darker days, employers find that employees may come to work late or not at all. In this case, deduction from employees pay can be made by an employer providing there is provision for this in the employee’s written contract of employment.

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.

Adverse Weather

While there is no obligation to pay employees who fail to attend work due to public transport issues, many employers will want to offer flexibility and alternative options.

Alternatively, the employer could allow the employee to work from home or another office or require the employee to make up the time later or take the time as paid annual leave.

Adverse Weather and Travel Disruption Policies are being increasingly utilised by employers.

Farleys Solicitors are experts in advising both private and public sector employers on a wide range of employment law and HR matters. For advice and assistance contact us on 0845 287 0939 or complete our online contact form.