Employment Law Winter and Festive Advice

Tis the season to be jolly (but maybe not too jolly) tra lalalala…!

Well as we near the end of another busy year some of us will be looking forward to a bit of down time whilst others will find themselves in full throttle. As those in Human Resources will know only too well, whilst it is a great time of the year for festive banter and jolly cheer, it can also be a busy time when the fun and frolics have gone too far - sometimes resulting in disciplinary action and grievances!

We thought we would take the opportunity to address and remind you of the problems that arise each year and remind you of your legal position. So if you are a manager, work in HR or an employee going to the christmas party here are some areas you may want to think about.

Christmas Parties

This is an opportunity for colleagues to unwind and socialise with one another in a more informal and relaxed environment. Unfortunately, on occasions, this environment (perhaps combined with the consumption of alcohol and/or the stresses of Christmas) can result in behaviours that would not normally be demonstrated in the workplace environment.

Types of behaviours include offensive comments, aggression, sexual comments, physical contact, sexual advances etc.

These types of behaviours, whether verbal or physical, are unacceptable and would need to be investigated and dealt with in line with your business’ disciplinary policy and procedure. Depending on the findings of your investigation, it may be necessary to instigate disciplinary action and, depending on the seriousness of the allegations, could result in dismissal.  

Under the influence whilst at work

Another issue that is generally more prevalent over the Christmas period is attendance by employees at work whilst still under the influence of alcohol. Each business will have its own way of dealing with this and must ensure that they adhere to their own policies and procedures in respect of the same.

In many businesses this will be considered to constitute an act of gross misconduct and will be treated accordingly. However, in order to minimise the risk of Tribunal proceedings, i.e. unfair dismissal claims / discrimination claims, it is important to ensure that the investigation and disciplinary process is conducted in a fair manner.

Conduct outside of the workplace

There is a common misconception that incidents and issues arising outside of the workplace cannot be the subject of disciplinary action as they fall outside the working environment. This is not necessarily correct.

If an employee was caught robbing a bank, wearing his/her work uniform and using the work vehicle with the name of the employer printed across it, would he/she be the subject of disciplinary action? Yes is the answer. There are a number of arguments for this, for example he/she has brought the business into disrepute, and he/she has committed a criminal offence.

I appreciate the example above is rather extreme but a similar approach is applied to other situations. For example, if a number of work colleagues are at the Greyhound Racing Track celebrating a work colleague’s birthday and, as they get a little rowdy, they start making offensive comments to one another or perhaps members of the public, they could potentially be subjected to disciplinary action. In particular, if the members of the public can identify the workplace at which the individual making the comments is employed, it could be argued that the workers have brought the company into disrepute.

Adverse Weather and Pay

The months following Christmas tend to be the coldest and, in recent years, tend to cause the most disruption in terms of employees being unable to attend work due to adverse weather conditions. The reasons often given at this time of the year are due to snow and ice making it difficult for employees to get into work under their own steam or, for those relying on public transport to get to work, disruptions or cancellations with services.

A common question is whether an employer has to pay an employee unable to get into work due to bad weather? Our advice is to check whether the business has a policy detailing the procedure in the event of non-attendance at work, in particular in respect of adverse weather, and explaining how absence will be treated.

In the event that the business does not have such a policy then the general stance is that the employee would need to take it as annual leave or unpaid leave. Should an employer wish to agree an alternative to this with an employee, for example for the employee to make the hours up at another time, then they are able to agree this between themselves but the employer must be mindful of the Working Time Regulations and ensure sufficient rest periods and breaks are not breached.

It should also be noted that an employer must treat employees consistently and fairly in respect of how the absence is dealt with. Failure to do so could result in claims for discrimination.

It is always advisable that businesses have policies to deal with this type of eventuality, for example adverse weather conditions.

Finally, we would all at Hunt and Coombs like to wish you a Very Merry Christmas and a Happy and Prosperous New Year!!

If you require any advice or assistance in respect of these seasonal issues or any other employment advice you may require then please do not hesitate to contact our Employment Law Team on:

Nicola Cockerill

01733 882800

 

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This article has been prepared for general interest and information purposes only; it does not constitute legal advice and should not be relied on as such. While all possible care has been taken in the preparation of this article, no responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by the firm or the authors.