The 12 myths of Christmas

1 “I  get my festive bank holidays in addition to my annual holiday entitlement.”

Employees are entitled to a minimum of four weeks’ holiday a year (which equates to 20 working days for most people), but public holidays may count towards this minimum.

Whether staff are entitled to festive bank holidays in addition to their annual holiday entitlement depends entirely on their contract of employment, subject to this minimum requirement.

2 “My employer will be liable for personal injury if I fall over at the Christmas party.”

An employer is under a duty to take reasonable care of the health and the safety of its employees, which includes taking steps to eliminate a risk that it knows, or ought to know, is real. However, this duty of care might not cover injuries resulting from an employeeÕs own over-zealous celebrations.

3 “My employer can force me to use my annual holiday entitlement if it shuts down between Christmas and New Year.”

Unless your contract says otherwise, your employer may specify any period in which staff may, or may not, take holiday as long as it tells them of this requirement at least twice as many days in advance of the start of this period. In other words, if employers want staff to take 28, 29 and 30 December as holiday, it must inform them six days in advance, ie by 22 December.

Most contracts provide for the employee to dictate the timing of their holiday (albeit subject to approval by management). In this case, the employer could run into difficulties enforcing a shutdown, unless it had a good commercial reason for doing so.

4 “I cannot be sacked if I over indulge in alcohol provided by my employer at the Christmas lunch.”

This is a tricky one, and will depend on the circumstances, including the precise nature of an employee’s behaviour, the behaviour of others, and their disciplinary record.

Staff should not assume that they can rely on the defence: “What did they expect when they plied us with alcohol?”, because ultimately, everyone is responsible for their own actions.

5 “I can come in late because of a festive hangover.”

The reality is that this will often be overlooked during the festive period. However, if staff arrive later than the time specified in their contract of employment, they will technically be in breach of contract.

Employers would therefore be justified in reacting in a reasonable manner, whether by pursuing whatever disciplinary action is appropriate in the circumstances, or by deducting the time from their pay (if it has the contractual right to do so).

6 “I can post my Christmas cards at the company’s expense.”

An employer may have a policy allowing staff to use its post free of charge, but this is unlikely. Using company resources without authority might justify a disciplinary warning, although it is unlikely to warrant dismissal except in cases of prolonged or significant unauthorised use.

7 “I can do my Christmas shopping online at work.”

Staff should not assume that their employer is happy for them to use its internet facilities for personal use. While some limited personal use will often be anticipated and permitted, employees should be sure that they are aware of the extent allowed by their employers, and whether it is restricted to certain times of the day.

Internet access and workstations are generally resources owned and paid for by the employer, and they have the discretion to set limits on their usage.

8  “My employer can deduct the cost of property I damage at the Christmas party from my pay.”

If staff damage someone else’s property, they will normally be liable to pay for it. However, an employer will not be able to deduct money from pay to cover the damage unless it has specifically reserved the right to do so.

Staff should check their contract of employment to confirm whether it says anything in relation to payment for damage to property. If not, an employer can still claim the money back, but just not in this way.

9 “IIf the trains are delayed because of bad weather, I can have the day off and it won’t be treated as holiday.”

If staff can make it into work they should do so, even if they will be late because of delayed trains. If it is impossible for them to get to work because of bad weather, staff might find that their employer has reserved the right to treat that day as unpaid leave or holiday, and it would be perfectly within its rights to do so.

If there is nothing in a contract to cover this situation, and the employer does not authorise staff absence, it could try to discipline employees (although this could well be unreasonable and might give rise to a constructive dismissal claim), or it might deduct a day’s pay from wages (the lawfulness of which will depend on the terms of a contract).

However, the reality is that most employers are reasonable, and will take the view that it is out of staff hands, so this situation will rarely become a problem.

10 “I cannot say no if my employer wants everyone to buy each other a ‘Secret Santa’ present.”

Your employer cannot force a staff member to contribute money of their own in this way, and staff should not feel pressured into spending money that they cannot afford.

However, if the contribution is only very small, they might find that the goodwill that is generated is well worth it.

11 ” I can take photos of everyone in their silly Christmas outfits and post them on the website.”

Under the European Convention of Human Rights, everyone has the right to respect for private life. Employees should seek permission from each individual before posting their photo on the website, otherwise it could give rise to problems for staff or their employer.

12 “I cannot lodge a grievance if a colleague behaves inappropriately at the Christmas party, because it is out of office hours.”

For an employer to be liable for its employee’s actions, those actions must be connected to the employee’s employment. Actions at a Christmas party will satisfy this test because the employeeÕs employment has provided the opportunity for them to behave in the way they have. So, staff may lodge a grievance, and an employer will be bound to deal with it appropriately.

For further information please contact Andrew Yule, Withers, on 020 7597 6281.

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