Last Christmas

The photographs of our office Christmas party last Friday demonstrate that everyone had lots of fun throughout the evening.  At the moment, I am unaware of any incidents which would cause our HR department any concern.  However, given the frantic nature of our workload in the period leading up to Christmas, it might not be until the New Year that employees advise their employer of any events which caused them concern during the course of the office Christmas party.

If, as an employer, you are unlucky enough to be handed a formal grievance by an employee in the New Year which relates to events which occurred “last Christmas”, it is very important that you do not ignore it.

ACAS Code of Practice

Whilst it might be tempting for an employer to advise an employee that an event which occurred at the office party last month is “water under the bridge”, this could be extremely costly for the employer in the future.  The ACAS Code of Practice applies to all employers and includes a grievance procedure which is intended to assist employees and employers in determining work place grievances.  Whilst the Code is not legally binding, a tribunal may, if it considers it just and equitable, increase any award of compensation to an employee by up to 25% if it believes that an employer has unreasonably failed to comply with the Code.  For this reason alone, grievances should not be ignored or brushed under the carpet by employers.

All reasonable steps defence

Remember too that, if you have an employee complaining about alleged harassment from a colleague at the office Christmas party, you, as the employer, are likely going to be vicariously liable for any such complaint.  As such, it is very important that, if you are given a grievance relating to these events, you create a paper trail recording the way in which you dealt with the complaint.  Additionally, if there is substance in the grievance, it is very important that you take action against any employees who have breached your internal policies.  This paper trail and your actions will go some way to potentially relying upon the “all reasonable steps” defence which is outlined in the Equality Act 2010 if you are later presented with a complaint of harassment.

Maintaining an engaged workforce

From a non-legal perspective, it is also very important for any work place issues to be addressed for the good of your workforce.  By addressing any outstanding issues, an employer should keep the workforce engaged and ensure that staff morale remains high.  Happier employees are more successful employees.  Whilst it may be possible to informally resolve a grievance by having a frank discussion with an employee, in certain circumstances the issue may require a more formal procedure.  Employers should not be scared to have these difficult and sometimes necessary conversations with employees.

Regrets?  I’ve had a few …

(The only one this year being my dance moves at the office Christmas party…!)

Simon Allison
Partner – Employment Law

Don’t Malk Me Resign!

Reports have emerged today that Malky Mackay, the manager of English Premier League Club Cardiff City, has been given an ultimatum to either resign or be sacked. BBC News reports that club owner Vincent Tan, a Malaysian businessman, wrote a letter to Mr. Mackay earlier this week criticising various aspects of his performance.

Concerns have been raised about Mr. Mackay’s use of the transfer budget following the Scot leading Cardiff City to promotion earlier this year. This is the first time the club have ever played in the Premier League.

It is well known that an employee who is expressly told that they have no future with an employer and who is invited to resign will be regarded as having been dismissed. Sir John Donaldson MR of the Court of Appeal devised a simple question for determining whether there has been a dismissal: “Who really terminated the contract of employment? If the answer is the employer, there was a dismissal”.

Employers should never invite an employee to resign, particularly in a heavy-handed manner with the threat of dismissal being aired as the only alternative. Holding a gun to the employee’s head will lead to an unfair dismissal.

Cardiff City currently sit 15th out of 20 teams in the Premier League, just 3 favourable results behind Manchester United.

Hang in there Malky!

Jack Boyle
Solcitor – Employment Law

I’m Dreaming of A White Christmas

Many workplace events at this time of year will involve alcohol and the antics commonly associated therewith.  Of course there will be some individuals who go too far and resort to substance abuse in order to maximise their enjoyment of the party season.

It is fine for employees to dream of a White Christmas, provided that the white stuff which is dreamed of is snow.  If however the white stuff which is dreamed of is an illegal substance, that is not OK.  Cocaine is drug controlled under the Misuse of Drugs Act 1971.

What does this have to do with employment law?  It is an offence for an employer to knowingly permit, or even to ignore, the use, production or supply of any controlled drugs taking place on their premises.  If you discover an employee taking drugs at an office Christmas party, be sure to take action.

However, a word of warning!   Where an employee is caught in the act taking an illegal drug it does not mean that the usual rules for disciplinary procedures can be abandoned in place of an on-the-spot dismissal.  That would likely result in a successful claim of unfair dismissal.

Employers should treat offences of this nature in the same manner as any other instances of misconduct.   The 3 stage process of suspension, investigation and disciplinary hearing should still be adhered to.

What about an employee who is convicted of drug abuse outside of the workplace?  They can surely be sacked right?  Potentially yes.  However, employers must still follow the necessary procedures and take into account relevant factors such as the nature of the job and whether the conviction impacts on the employer’s reputation.

A tip from the top: Keep your snow for the snowmen this year.

 Simon Allison
Partner – Employment Law

It’ll Be Lonely This Christmas

For many, this will be the last full working week before Christmas and festive cheer will be well underway.  Whether it is office parties, boozy lunches or post-work pints, there is the potential for a seasonal increase in the number of office hangovers – and the resultant number of non-attending employees.

Employers might find that it’ll be lonely (in the office) this Christmas!

Having said that, employers should not ignore the absent employees and should instead follow these three simple tips:

Assess the reason for non-attendance

Don’t jump to conclusions and assume that an employee is absent due to booze-flu.

Instead employers should assess the genuine reason for absence, particularly if there is a risk that the reason for absence is due to an employee’s potential disability.  This will require, as a minimum, asking the employee the reason for non-attendance on the return to work and, if appropriate, carrying out an investigation before deciding whether disciplinary action is appropriate.

Take appropriate action against absent employees

After investigation, if there are no good reasons for non-attendance, employers can take disciplinary action against the non-attending employees.  It would be preferable for employers to have some form of written policy regarding sickness and absence however, even if there is no formal policy, it is still possible to take formal action.

Additionally, if your office Christmas party is mid-week and people are expected to attend work the following day, a pro-active step would be to ensure that all staff know prior to the party that disciplinary action can be taken against them if they fail to turn up for work due to over-indulgence.

Adopt a consistent approach

In order to avoid claims of discrimination, employers should apply the company’s sickness and absence policy consistently.  If a history of festive tolerance has emerged over the years, it might prove more difficult to justify dismissing an employee on the basis of a one-off incident.  Having said that, the more pro-active the employer has been in warning employees about the potential for disciplinary action prior to an office party, the more likely a tribunal will find a subsequent dismissal to be fair.

Ultimately employers should take advice if they wish to take action against the non-attending employee.  Whilst it is the season of goodwill to all men, this does not mean that an employer requires to ignore any potential misconduct.

Tis the season to be careful …

Simon Allison 
Partner – Employment Law

When A Child is Born

Employers should not forget about their employees on maternity leave at this time of the year.

Invite to Christmas party

The Equality Act 2010 makes it clear that it is unlawful to treat an employee less favourably because of pregnancy or maternity.  In my view, such less favourable treatment could include being invited to the office Christmas party.  For that reason, if you are inviting all staff to a Christmas party, remember to extend the invite to any employees who are currently out of the office on maternity leave.

Non cash benefits 

An employee on maternity leave is also entitled to benefit from all of her terms and conditions of employment with the exception of those relating to remuneration.  So she should continue to accrue any non-cash benefits which were available to her during employment, such as life assurance, private medical/dental insurance and annual leave.  A failure to allow the employee to continue to enjoy such benefits could result in a successful claim of discrimination.

Pay rise

Although remuneration is expressly excluded from terms and conditions of employment which are to be enjoyed by employees on maternity leave, this does not apply to any global pay rises.  If a pay rise which is applied to the whole of the workforce is not also applied to an employee on maternity leave, this would again be unlawful and likely to result in a successful claim by the employee.

Christmas bonus

The issue of bonuses is slightly more complicated when it comes to employees on maternity leave.  If a bonus amounts to commission or profit-related pay and is paid to reward specific performance or attendance at work, this falls within the definition of “remuneration” and, as such, does not generally require to be paid to employees on maternity leave, subject to employees receiving it for the period of compulsory leave which is either two weeks or four weeks.  However a bonus which applies to all staff without specific reference to an individual’s performance – for example, a Christmas bonus – will fall to be paid to all employees, including those on maternity leave.

So regardless of whether you gift your employees a bottle of champers, a Christmas ham or a tin of beans over the festive season, give consideration to your intended recipients and, if in doubt, take advice from your solicitor!

Simon Allison
Partner – Employment Law

Do You Hear What I Hear?

Alcohol can make managers say silly things.  For this reason, managers should avoid conducting staff appraisals at the office party.  Whilst it might seem obvious that a Christmas party is not the appropriate forum for such discussions to take place, it is not unusual for employees to seek to discuss work matters whilst under the influence.

Managers who hold such discussions at the office party should promise at their peril!

Do you see what I see? 

It is also the time of year when Facebook becomes littered with photos of Christmas party shenanigans.  If an employer believes that an employee has brought the company into disrepute as a result of a Facebook tag, in the correct circumstances the employer is entitled to take disciplinary action against that employee on the basis of alleged misconduct.  Alternatively if an employee complains to its employer about a colleague’s post, in the correct circumstances the employer can take action against the colleague or, at the very least, encourage that employee to pursue a formal grievance about the content of the colleague’s post.

It is however very important for employers to have a social media policy in existence.  Similarly employers require to clearly communicate that policy to its staff.  Provided that the policy is drafted correctly, the employer can control the content and effect of its employees’ social media activity and hopefully prevent enduring the Nightmare Before Christmas!

Simon Allison
Partner – Employment Law

Mistletoe and Wine

Is there anything wrong with a free bar at the office party?

Ten years ago, my answer to that question would have been “no”.  However, given my involvement in numerous employment tribunals over the past ten years which have centred around employees and free bars, my answer would now be “yes”.

Whilst you might want to provide a number of celebratory drinks for employees to reward them for their hard work over the year, remember that maintaining a free bar throughout the evening will encourage excessive alcohol intake.  This might be a factor relied upon by an employee in any future dispute with the employer.

Employers should also remember that there is a duty of care owed to employees and that there are obligations under the Health & Safety at Work Act.

If you are offering a free bar, I would suggest that you consider implementing my own party rules to any such office party.

Where possible, I always try and follow the 3 Ls:

Line your stomach!  Ensure that there is plenty of food available for party goers at the beginning of the night.  If you are serving a meal, ensure that the meal is not served too late so as to avoid excessive alcohol consumption early in the evening.

Limit your intake!  Consider restricting the amount of free alcohol which is available.  Do you want to set time limits for the free bar?  Do you want to provide lager and wine as opposed to whisky and skittle-bombs?

Limber up on the dance floor!  Consider putting on entertainment.  If you provide a disco for employees, this might restrict the number of people who spend the evening propping up the bar.  Encourage your colleagues to throw some shapes on the dance floor, even if this means that you require to lead by example.

Ultimately however, despite the festive cheer, employers should be prepared to ask individuals to take it easy, if they appear worse for wear.  (I only hope that nobody feels the need to have that conversation with me on Friday!)

Simon Allison
Partner – Employment Law 

All I Want for Christmas is You

We all remember the video for this Mariah classic.

Mariah is bounding around in her snow suit with Santa and the dog wearing the reindeer antlers, whilst singing about that special someone who is more important to her than presents.  However imagine that Mariah was an employee who was singing about a colleague with the office Christmas party looming on the horizon.  In that scenario, an employer would have good cause to be worried!

It is an established HR principle that an employer is liable for any discriminatory acts of its employees which are carried out in the course of their employment.  This means that an employer could be liable to an employee who is faced with unwanted advances by a colleague at a Christmas party.  The law is also clear that it does not matter whether these advances are carried out with the employer’s knowledge or approval.

It is however a defence for an employer to demonstrate that it took all reasonable steps to prevent the employee from taking these actions.  The Equality and Human Rights Commission’s Code of Practice suggests that reasonable steps are likely to include:

–          Implementing an equality policy

–          Ensuring workers are aware of the policy

–          Providing equal opportunities training

–          Reviewing the policy as appropriate and

–          Dealing effectively with employee complaints

In an effort to protect itself, an employer should be doing two things.  Firstly it should be educating its employees about any internal policies and reminding employees of these policies prior to the office party.  Secondly an employer should take action, where appropriate, in respect of any breaches of its policies, even when such breaches take place at office parties.

Oh ….and you may not want to invite Mariah to your office Christmas party either!

Simon Allison 
Partner – Employment Law

Do They Know It’s Christmas?

Back in 1984, Band Aid sang “Do They Know It’s Christmas?”

In my view, the title of this song identifies another important employment law principle which is relevant to the office Christmas party.

It is established in law that an office event which takes place outwith the office environment and outwith office time can still be deemed an “extension of the work place”.  This effectively means that employees can be disciplined for unacceptable behaviour at the office party and, more worryingly, employers can be held liable for their employees’ actions at that party.

If a drunken employee were to harass a colleague at the office Christmas party, the employer could potentially be vicariously liable for any claim of sexual harassment from the colleague.  This principle permits that colleague to raise a claim of sexual harassment against both the drunken employee and the vicariously-liable employer, if the event took place during this office party.

For this reason it is important for employers to set out to employees, prior to the party, the boundaries of acceptable behaviour.  Employers should provide clear written guidance to all employees reminding them of any discrimination, bullying or harassment policies which will still have effect at the office party.  Employers would also be well advised to remind employees that fighting, excessive alcohol consumption, inappropriate behaviour and sexist or racist remarks will not be tolerated.

These actions should hopefully make Joe Bloggs think twice before downing his thirteenth Jagerbomb and making his move on the HR manager.  Alternatively, if he does make that unwanted drunken advance at the party, the employer’s prior warning makes it easier for the employer to take disciplinary action against Joe Bloggs on the Monday morning.

Employers should definitely make sure employees know it’s Christmas (subject to the caveats above!).

Simon Allison
Partner – Employment Law 

Deck the Halls with Boughs of Holly

Are Christmas decorations in breach of health and safety rules?

If I was given a pound coin on every occasion that I was asked this question, I could probably afford to fund our staff Christmas party next Friday.  The law is clear that, provided a proper risk assessment is carried out considering where and how Christmas decorations are sited, particularly those which could pose potential fire hazards, an employer should not fall foul of health & safety rules.  Having said that, your insurance may not cover damage caused by untested electrical equipment so employers should ensure that, for example, Christmas tree lights are switched off before going home.

The Health & Safety Executive have provided some very simply Christmas decoration tips on their website.  These tips include:

  • Use a step ladder to put up decorations – not a swivel chair.
  • Do not hang tinsel on the computers or other sources of heat.
  • Do not decorate emergency exit signs.
  • Make sure that Christmas trees are secure and will not be knocked over by people passing or pulling cables.
  • Use paper cups, not glasses.
  • Keep fresh party food in a fridge before the party.

In conclusion, health and safety considerations should not prevent employers from decorating their offices over the festive season.  However employers might be well advised to avoid more extreme forms of office-based celebrations such as indoor fireworks and flaming puddings!

Simon Allison 
Partner – Employment Law