Guernsey: Surviving The Festive Season - An Employer’s Guide

Last Updated: 15 December 2011
Article by Emma Parr

With office parties, hangovers, absenteeism and sick leave all on the increase, it is important for employers to remember that with effective handling and management from the outset, this time of year can be one to remember and not one to forget...

Here are Collas Crill's top tips to surviving the festive season and its aftermath:

1. Tackling holiday

If your business intends to remain open during the festive season you may have to deal with issues of conflicting holiday requests from staff. An employer will be expected to balance holiday requests against the operational needs of the business. Staff will have to accept that they can't all take the same time off!

Remember to treat your staff fairly and consistently. For example: there is no legal obligation on an employer to favour parents over non-parents and those employers that do may face a complaint of sex discrimination. What if a male worker feels he has been treated less favourably, by not being allowed annual leave, than his female co-worker, who is allowed annual leave on the basis that she has children?

2. Christmas bonuses

In today's fragile economy it would be understandable for some employers to decide that there just isn't enough left in the pot to pay staff an end-of-year bonus. If so, those employers must be mindful if they wish to avoid a complaint or costly tribunal hearing.

An employee may have a contractual right to be paid a bonus, especially it this is stated in his or her contract of employment. However, most employers offer discretionary bonuses only when, and if, certain targets are met.

However, if it has become customary practice within your business to pay staff a Christmas bonus and it is 'expected', then an employee may argue that it has become an unwritten term of the contract of employment and any failure to pay could constitute a breach of their terms and conditions.

3. Adverse weather conditions

You may recall last year's freezing conditions and early snow showers - well thankfully that hasn't happened this year (as yet!). However, that's not to say it won't happen and if it does, adverse weather conditions can prove very disruptive to any business. Employers should ensure that they have clear policies on getting into work, and what to do in the event of non-attendance. Make sure these policies are communicated to staff well in advance of any anticipated bad weather.

Employers are not automatically obliged to pay an employee for the days in which he or she can't make it into work because of adverse weather. However, employers need to be flexible whenever possible and consider alternative solutions such as working from home, or a temporary change in working hours. The answer is to plan ahead - if bad weather is forecast, send an email to staff letting them know what is expected in terms of getting into work; it doesn't have to be an excuse for having a an extra day off!

4. Christmas party etiquette

While the office party can be seen by some as a chance to 'let their hair down', sometimes this behaviour can overstep the mark, and occasionally lead to disciplinary action or an outright dismissal. Worryingly, statistics suggest that the majority of employers surveyed had, at some point, been required to terminate an employee's contract after a work social event due to conduct issues. Examples of bad party etiquette usually stem from too much free alcohol - the odd lewd remark, offensive joke or inappropriate touching can all lead to complaints of sexual harassment or misconduct.

Employers could be held responsible for their employees' conduct (or, indeed, their own) unless they can demonstrate that all 'reasonably practicable' steps were taken to prevent the misconduct from happening; these parties are, after all, considered to be held 'in the course of employment'. To avoid this, the prudent employer should remind its employees (before the big event) what behaviour is expected of them; a company wide email, suitably worded, will usually suffice without seeming to be too heavy-handed. Managers or senior staff would also be well advised to brush-up on company disciplinary policies to ensure that if misconduct does arise, it can be effectively managed right from the outset, and if you don't have any policies in place, you would be well advised to implement them before the party!

5. The (mild) hangover

Employees must be mindful not to be over zealous with the celebrations in the festive season. They must remember that they are still employed to work and by arriving later than the start time specified in the contract of employment, he or she could technically be in breach of contract. Having said that, we would like to hope that most employers see reason, particularly at this time of year, and may just 'overlook' the occasional lateness.

Persistent lateness, however, is unlikely to go unnoticed and in these circumstances an employer would be perfectly justified in instigating a disciplinary procedure to address the issue. Depending on whether there is a contractual right to do so set out in the contract of employment, some employers may even feel it appropriate to deduct the loss of time from an employee's wages.

6. The aftermath

An employer could be mistaken for believing that the festive season has gone without a hitch; everything has gone to plan - the office was appropriately manned with skeleton staff over the holiday period, staff were given an end of year bonus, the snow didn't fall so everyone made it into work on time, the hangover didn't happen and the Christmas party seems to have made a lasting impression - but what happens if a complaint still lands on an employer's desk? This may not be the start to 2012 that they had hoped for!

Probably one of the most common complaints relates to accusations of sexual harassment; what initially seemed like a tasteless joke has left an employee feeling offended and vulnerable and they've had the whole holiday season to think about it. Any complaints should be taken seriously and effectively managed. Employers will need to address the issue promptly; any disciplinary action should be conducted fairly and follow a set disciplinary procedure - a knee jerk reaction to dismiss the complaint will not suffice.

Employers should also be warned to exercise discretion when dealing with certain complaints due to the sensitivity surrounding the issues. In a recent tribunal decision, an English firm of solicitors were held accountable for the actions of its HR Manager who inadvertently spread gossip about an employee's pregnancy following a night of frivolity at the office Christmas party. This proved to be humiliating for the employee concerned, but an even more humiliating and costlier matter for the firm.

The most important thing for employers and employees to remember is to enjoy the festive season without overstepping the boundaries. By ensuring that all risks and eventualities have been considered and prepared for, and by providing suitable policies and procedures in advance, everyone can be free to enjoy themselves without worrying what the following year will bring.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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