With preparations in full swing for the festive season, we review typical workplace issues commonly faced by employers at this time of year and suggest some practical tips for dealing with them successfully.
1. Christmas party and liability for employees
As Christmas approaches, there is an influx of stories concerning inappropriate behaviour in the workplace and sexual harassment claims. These serve as an important reminder of the significance of respecting dignity at work and of having appropriate bullying and harassment policies in place.
The Workplace Relations Commission (WRC) recently upheld a decision by an employer to terminate the employment of an employee who made a derogatory remark about a colleague at a going away party. The employee said that the outing was not an event organised or paid for by the company, nor was it an official “work outing”. However, the company argued that the employee had breached its dignity at work policy which warranted his dismissal.
Tip: Employers should ensure that employees understand that just because they are attending the Christmas party, it does not mean that normal rules around appropriate workplace behaviour do not apply for the night. Ideally, employees should be regularly trained, or, at the very least, reminded that they are expected to observe any dignity at work and/or bullying/harassment policies at work-related events. Employers should introduce these policies where they currently are not in place. The policies should ideally include references to work-related social events.
2. Christmas promises
The UK Employment Appeals Tribunal (EAT) has set out that a promise made by a manager at a company Christmas party was not contractually enforceable because there was no intent for the promise to be kept.
An employee alleged at the Christmas party that his manager promised that his salary would be doubled over the following two-year period. The employee subsequently resigned, claiming constructive dismissal on the grounds that his manager had broken this promise.
The EAT held that the context of the conversation, i.e. the company Christmas party, indicated that the manager did not intend to enter into any legally binding contractual commitment. It was deemed to be more a statement of intent.
This case should not be interpreted as meaning that things said at the Christmas party cannot be intended to create legally binding commitments. Commentators on this case have noted that the company was “lucky” and that it “could easily have gone the other way”.
Tip: Employers should advise managers not to discuss career potential or remuneration with employees at the company Christmas party. Words of encouragement and good intentions can end up being misinterpreted or misconstrued.
3. The morning after the night before
Employers are obliged under the Safety, Health and Welfare at Work Acts 2005, to provide a safe place of work, insofar as is practicable. Employers should be mindful of these obligations to employees who are required to work the day after the Christmas party. This applies particularly to employees who drive or operate machinery. Employers must be cautious about testing employees for drugs and alcohol unless this practice is provided for in the employee’s contract of employment. In order for a lawful test to take place, there needs to be a clear policy for this testing, or the employee must agree to it.
In a recent Aer Lingus case, the Labour Court upheld the decision by the airline to fire an employee for arriving at work drunk at 4.20pm the day after a work party. The employee apologised for being over the limit the following day. She “truly thought” she was fit to work. The Labour Court stated that the employee clearly understood that she was employed in a safety critical role and found that the dismissal was fair.
Tip: Employers should inform all employees of their expectations that, should they report for work the day after the Christmas party, they must not be under the influence of alcohol or drugs. If the employer has the right to do so, consider undertaking tests for drugs and alcohol for employees who are rostered to work following the Christmas party. If an employee fails this test, then consider taking action in accordance with the company’s disciplinary policy.
4. You have been tagged
It might be said that there is no such thing as bad publicity. However, the last thing an employer needs is for images or footage from its Christmas party going viral on social media sites for all the wrong reasons.
Tip: Employers should ensure that employees are aware, either through the company social media policy or specific guidelines circulated in advance of the Christmas party, that employees should not place material on social media sites which would adversely affect the reputation of the employer. Employees should also be made aware that this conduct may result in the employee being disciplined.
5. 'Secret Santa'
While 'Secret Santa' in the office is often seen as a bit of fun, the anonymity involved can sometimes result in inappropriate, and even offensive, gifts being exchanged between colleagues.
In a 2013 Circuit Court case, a present of red Santa boxer shorts given by a female garda to her male colleague as part of the workplace 'Secret Santa' was referred to in proceedings in Letterkenny Circuit Court. The scenario was referred to as evidence that the female colleague may have been complicit in the 'banter' in the office in circumstances where she alleged that the male garda had sexually harassed and assaulted her.
Tip: Employers should ensure that employees are aware that 'Secret Santa' falls under the dignity at work and bullying and harassment policies. As a result, employees should be encouraged to consider in advance of selecting a gift whether their choice might cause offence or be construed as bullying or harassment.
6. Public holidays
Under the Organisation of Working Time Act 1997 (1997 Act) there are three public holidays over the Christmas period. These are Christmas Day, 25 December; St Stephen’s Day, 26 December; and New Year’s Day, 1 January. Employees who qualify for public holiday benefit will be entitled to one of the following:
- a paid day off on the public holiday
- an additional day of annual leave
- an additional day's pay, or
- a paid day off within a month of the public holiday
Most employees are entitled to paid leave on public holidays. One exception applies to part-time employees who have not worked for their employer for at least 40 hours in total in the five weeks before the public holiday.
Tip: Employers are advised to draw up rosters and confirm with employees the days they will be required to work over the holiday period in early December. This should be done to avoid any confusion or upset among staff and to ensure compliance with the 1997 Act.
7. Bonus entitlement
It is common practice at this time of the year for employers to give employees Christmas bonuses as a gesture of goodwill.
If an employee’s contract of employment is silent on the payment of a Christmas bonus, an employee may argue that this bonus is an implied term of their employment contract. This is particularly the case where there has been a custom and practice of paying the bonus on a yearly basis over a number of years. In a 2009 Labour Court decision, it was determined that an employer could not stop paying its employees a Christmas bonus as it was “clear from the wording of the Company/Union Agreement, and the previous practice within this employment…”., It was decided that the bonus was “…an integral part of the conditions of employment of the workers to whom it relates”.
Tip: An employer should ensure that its employees’ contracts of employment expressly state that a Christmas bonus is payable wholly at the discretion of the employer and is not a contractual entitlement. However, employers should bear in mind that the less they use this discretion, the more difficult it is to rely on it.
8. Bonus discrimination
When calculating bonuses which are based on company or team performance, employers must ensure that some employees are not treated less favourably than others. This applies to those who have taken a leave of absence for maternity or medical reasons, for instance.
Employers should note that employees on carer’s, parental, maternity, adoptive and sick leave are protected against discrimination under the employment equality acts.
Tip: When paying a Christmas bonus to employees, employers should be mindful not to discriminate against employees on any of the nine protected grounds set out in the employment equality acts.
9. Snow day
If an employee fails to attend work due to snow travel disruption, they have no statutory right to be paid. If an employee is stranded abroad for personal reasons, an employee may seek to take the days from their paid annual leave entitlement or make up the time at a later date.
If, however, the employee is away on a business trip and cannot get back home, the situation may be different. It could be argued that this time is similar to an employee being ‘on call’ and at the disposal of the employer. As a result, in these instances, an employee should be paid.
In any event, if an employee can still carry out work remotely, it would be unreasonable for an employer not to pay an employee who was away on company business and who is still working.
Tip: Where an employee is unable to attend work due to snow travel disruption, the employee is generally not entitled to be paid. An employer should look at each situation on a case-by-case basis and should consider the possibility of an employee working remotely pending the employee’s return to work.
10. Deck the halls
Under health and safety legislation, employers are obliged to provide and maintain a safe place of work for employees. While employers’ health and safety obligations should not be used as an excuse to dampen the festive spirit in the workplace, employers should take common sense precautions when it comes to decorating the office for Christmas.
Tip: Employers should take precautions such as providing staff with suitable step ladders to put up decorations, making sure that Christmas trees are not blocking fire escape routes or exits, and checking any novelty lighting for defects.
Merry Christmas and Happy New Year from Mason Hayes & Curran