Christmas protocol

Q What rights do staff employed for the Christmas season have?

A Seasonal staff have the same rights as permanent staff, although they will not have accrued enough service to exercise some of them. However, an employee with less than a year’s service can still bring a claim for unfair dismissal on certain grounds – for example, if they are dismissed for a reason related to the Working Time Regulations 1998, pregnancy or childbirth, parental leave, or time off for dependants.

A seasonal worker can also bring a claim for discrimination, as there is no qualifying period of service for discrimination claims.
Even someone who is only working for a month over the Christmas period will have accrued some rights to paid holiday. If the holiday pay is being ‘rolled up’ into the hourly rate or weekly pay, this must be done very carefully to avoid breaching the rules.

The contract, and preferably the pay slip, should state what amount of the whole is holiday pay, and the worker should be made aware of this position.

Q Can we close the office at Christmas?

A Obliging staff to take holiday at Christmas may not seem harmful, but for non-Christian employees, this could be a form of discrimination on religious grounds – especially if they would prefer to save their annual leave for their own religious festival at a different time of the year.

If it is possible to allow such staff to work over Christmas, perhaps from home, or to keep the office open for them, then this should be considered. However, if there are good business reasons as to why this is not possible, then an employee claiming religious discrimination on this ground is unlikely to be successful.

Q Which issues should be taken into account when organising the company Christmas party?

A Staff should be reminded beforehand that improper conduct at the company party will not be tolerated. If a member of staff is harassed by other employees, you, as the employer, may become the target of a claim – even if the party was not held on company premises, or during office hours.
It is a defence to show that you took reasonable steps to prevent the harassment. It may also be appropriate to stem the supply of free alcohol if necessary. Remember to take the newer anti-discrimination areas of sexual orientation and religion or belief into account, along with those of sex, race and disability. If you do receive complaints, make sure you deal with them in a sensitive manner, and investigate where appropriate.

With the introduction of the law on discrimination on grounds of sexual orientation, you must take care that same-sex partners are included if employees’ partners are invited to the Christmas celebrations.

You should also remember to invite staff on maternity leave, and ensure there is appropriate access for disabled guests.

Q We’ve paid Christmas bonuses in the past. Do we have to continue to do so?

A If you habitually pay a Christmas bonus to all staff, or all employees within a particular group (such as directors), and the amount is always a percentage of salary or profits, the bonus may have acquired near-contractual status. Those who usually receive it will have a legitimate expectation of continuing to get it.

To avoid breach of contract claims by disgruntled employees, you should continue to pay the bonus, unless you can show that it really is discretionary, or you can vary the terms of employment.

A point to check is whether those on sick leave or maternity leave can be excluded from the bonus payments. This will depend on the terms of the bonus scheme, so it is generally worth taking legal advice on the issue.

By Victoria Parry, partner, Osborne Clarke/provided by XpertHR

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