4 Festive Questions Which Require to be Answered by an Employer TODAY…

1) Have you decided who will be on annual leave over the festive season?

Since Christmas Day falls on a Wednesday this year, it seems likely that most businesses will be open for some days over the festive season.  Does your company have clear, written procedures for booking and refusing annual leave requests?  Do you require your workforce to give you a period of notice for these holiday requests?  Employers require to deal with any such requests fairly and consistently in order to avoid potential discrimination.  It would potentially be discriminatory to give annual leave priority to employees with family commitments over the festive season.   Employers who are required to deal with multiple holiday requests should put in place guidelines for determining such requests.  It might be that an employer chooses to operate a first come, first served system, a yearly rota system or a random selection.  These policies should avoid claims of discrimination.

2) Have you made arrangements for your Christmas party?

If you have not already made your arrangements for the office Christmas party, you will need to get your skates on.  Have you considered your food and drink offering?  If you are providing free drink, have you ensured that there are also non-alcoholic alternatives?  If you are providing food, have you catered for vegetarians and any workers who have religious preferences?  Again employers require to exercise caution so as to avoid falling foul of discrimination legislation.

Employers should remember that, even although your Christmas party may take place off site and outwith working hours, employers can still be vicariously liable for any harassment which takes place amongst employees at the office party.  This may be the case even when the employer does not know that such harassment has occurred until after the event.

An employer’s strongest defence to this type of claim would be to demonstrate that it took reasonable steps to protect its workforce against such harassment.   Prior to any Christmas party, employers require to strike a balance between ensuring that employees are aware of their responsibilities at any office party and ensuring that they spread the correct amount of Christmas cheer.

3) Does your statutory leave year end on 31 December?

If so, you should be encouraging staff to use their annual leave entitlement before the end of the leave year.  If you have employees who are absent from work due to ill health, you should take steps to consider their entitlement to carry holidays forward into the next leave year.  The European Court of Justice has established that employees continue to accrue their holidays whilst absent on sick leave.  Earlier this year, the Employment Appeal Tribunal confirmed that, where a worker has been unable to use annual leave due to sickness absence, their entitlement to carry forward annual leave is restricted to the four weeks’ basic leave, unless there is a “relevant agreement” stipulating differently.   Employers would be wise to revisit their employment contracts or handbooks so as to be clear as to the level of annual leave which can be carried forward over each leave year period.  If the employer intends for employees to be able to carry forward the full 28 days’ entitlement, the employment contract should specifically states this.  Likewise, if employers intend to permit workers to carry forward the minimum 20 day entitlement, this should be clearly spelt out in the employment contract.

4) Have you decided who is playing Santa at the office Christmas Party?

Actually that last question was a joke.  I still believe in Father Christmas and will be hanging out my stocking on Christmas Eve!

Simon Allison 
Partner – Employment Law 

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