‘Tis the season to be cautious

‘Staff are entitled to take festive bank holidays in addition to their annual holiday entitlement.’

Employees are entitled to a minimum of four weeks’ holiday in each leave year, which equates to 20 working days for most people, but public holidays may count towards this minimum. Employers can incorporate festive bank holidays into employees’ annual holiday entitlement, but this must be within their contract of employment and subject to the minimum holiday requirement.

‘The firm is automatically liable for personal injury if an employee injures themselves at the Christmas party.’

An employer is under a duty to take reasonable care of the health and 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 employee’s own over-zealous celebrations.

‘We can’t ask staff to use their annual holiday entitlement if the office closes between Christmas and New Year.’

Unless an employee’s contract says otherwise, employers may specify any period in which their staff may, or may not, take holiday as long as they inform staff of this requirement at least twice as many days in advance of the start of this period. In other words, if you want staff to take 28, 29 and 30 December as holiday, you must inform staff of this six days before on 22 December. Most contracts, however, allow employees to dictate the timing of their holiday. In this case, you could run into difficulties enforcing a shut down, unless you have a good commercial reason for it.

‘We are unable to discipline staff who come in with a hangover because it is the festive season.’

In reality, this tends to be overlooked during the festive period. However, if employees get to work later than the time specified in their contract of employment, technically they are in breach of their contract. Employers are, therefore, entitled to react through appropriate disciplinary action or deducting the time from their pay, if they have the contractual right to do so.

‘We can’t make a non-Christian employee take time off at Christmas because of religious discrimination laws.’

If the office is closed, there is nothing unlawful about requiring employees to use their annual leave entitlement to take time off work as long as you give them sufficient notice. Religious discrimination laws are far more likely to be used by religious employees who are not permitted to take leave during a religious festival that has significance for them. Whether this does amount to discrimination will depend upon all the circumstances of the case, including the particular needs of the business at that time.

‘We cannot object to staff doing their Christmas shopping online at work.’

Internet access and workstations are resources owned and paid for by the firm and you can therefore set limits at your discretion. Employees should not assume that you are happy for them to use office internet facilities for personal use.

‘We have to give staff the same Christmas bonus as last year or they could sue.’

An employer will be in the strongest position if there is a written statement that bonuses are non-contractual. If your contracts say nothing and you have always paid such bonuses, then you may have established a ‘custom and practice’ of doing so. In this case, employees may be able to sue you for an unlawful deduction from wages if you do not pay a Christmas bonus.

‘It’s not our problem if the Christmas party venue is non-DDA compliant.’

Even if your Christmas party is held off work premises and outside working hours, you may still be liable for disability discrimination if the venue does not comply with the Disability Discrimination Act (DDA). To avoid such claims, if you are aware that any of your employees are disabled or if they might be bringing a disabled guest, you should check your party venue has disabled facilities. You should also consider broader health and safety obligations, and ensure that the venue is suitable – for example, by having fire exits.

‘We should ban the Christmas office party because of the risk of legal claims.’

The risk of legal claims arising from office parties is small. Employers need to balance that risk against the level of goodwill an annual party can generate. If you ban the Christmas party, you will lose out on a good opportunity to foster improved working relations and could cause untold, unseen damage to staff morale that might not be easy to remedy.

Andrew Yule is a solicitor at law firm Withers LLP

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