1. Christmas Party (i)
An employer is liable for the conduct of its employees at a Christmas party organised by the employer. The Equality Tribunal and the Labour Court have had little difficulty in establishing liability where a person is harassed at a work-related event such as a Christmas Party (See Ms. A v A Public House and Mr. B [DEC-E2012-022] and Maguire v North Western Health Board  ELR 340).
Tip: Employers should ensure that employees understand the standard of conduct expected of them at a Christmas party and that they are expected to observe the provisions of the Dignity at Work and Bullying and Harassment policies at work related events. Employers might consider amending such policies, or introducing them if such policies are not in existence, to include references to work related social events if necessary.
2. Christmas Party (ii) - The Promise
The UK Employment Appeals Tribunal ('EAT') in Judge v Crown Leisure Limited (EAT 0443/04) held that a promise made by a manager at a company Christmas party was not contractually enforceable because there was no intent for it to be so.
Mr. Judge was employed by Crown Leisure Limited ('CL') and claimed that at the CL Christmas party, his manager promised that his salary would have doubled over the following two year period. Mr. Judge subsequently resigned, claiming constructive dismissal on the grounds that his manager had broken this promise.
The EAT held that the context of the conversation (the company Christmas party) indicated that Mr. Judge's manager did not intend to enter into any legally binding contractual commitment to Mr. Judge, rather it was more a statement of intent.
This case should not be interpreted as meaning that things said at the Christmas party cannot be intended to create legally binding commitments with commentators noting that the company was "lucky" and that "the case could easily have gone the other way".
Tip: Employers should advise managers not to discuss career potential or remuneration with employees at the company Christmas party, as words of encouragement and good intentions can end up being misinterpreted.
3. The Morning After the Night Before
Employers are obliged under the Safety, Health and Welfare at Work Act, 2005, to provide as far as is practicable, a safe place of work. Employers should be mindful of such obligations to employees who are required to work the day after the Christmas party, in particular employees who drive or operate machinery. An employee should not be at work under the influence of drugs or alcohol so that they do not endanger their own or another person's health and safety at work.
Employers should be cautious about testing employees for drugs and alcohol unless such testing is provided for in the employee's contract of employment, where there is a clear policy for such testing or where the employee agrees to such testing.
Tip: Employer's should tell all employees of their expectations that employees who report to work the day after the Christmas party are not under the influence of alcohol or drugs. If the employer has the right to do so consider undertaking tests for drug and alcohol for employees who are rostered to work following the Christmas party and if an employee fails this test consider taking action in accordance with the employer's disciplinary policy.
4. You Have Been Tagged
It might be said that there is no such thing as bad publicity but the last thing an employer needs is for images or footage from its Christmas party going viral on social media sites for all the wrong reasons.
Tip: Employers should ensure that employees are aware either through the company Social Media Policy or specific guidelines circulated in advance of the Christmas party, that employees should not place material on social media sites which would adversely affect the reputation of the employer and that such conduct may result in the employee being disciplined in accordance with the employer's disciplinary policy.
5. Secret Santa
While Secret Santa in the office is often seen as a bit of fun, the anonymity involved can sometimes result in inappropriate, and even offensive gifts, being exchanged between colleagues.
Recently a present of red Santa boxer shorts given by a female Garda to her male colleague as part of Secret Santa in their workplace was referred to in proceedings in Letterkenny Circuit Court as evidence that the female colleague may have been complicit in the "banter" in the office in circumstances where she alleged that the male Garda had sexually harassed and assaulted her.
Tip: Employers should ensure that employees are aware that Secret Santa falls under the Dignity at Work and Bullying and Harassment policies and encouraged to consider in advance of selecting a gift whether their choice of Secret Santa gift might cause offence or be construed as bullying or harassment.
6. Holidays are Coming (i) - Public Holidays
Under the Organisation of Working Time Act, 1997 (the '1997 Act') there are three public holidays over the Christmas period; Christmas Day (25 December), St. Stephen's Day (26 December) and New Year's Day (1 January). Employees who qualify for public holiday benefit will be entitled to one of the following:
- A paid day off on the public holiday
- An additional day of annual leave
- An additional day's pay
- A paid day off within a month of the public holiday
Most employees are entitled to paid leave on public holidays. One exception is part-time employees who have not worked for their employer for at least 40 hours in total in the 5 weeks before the public holiday.
The 1997 Act provides that an employee is entitled to ask his/her employer at least 21 days before a public holiday, which of the alternatives, above, will apply. If an employer fails to respond to the employee at least 14 days before the public holiday, the employee will be entitled to take the actual public holiday as a paid day off.
Tip: Employers are advised to draw up rosters and confirm with employees the days they will be required to work over the holiday period in early December to avoid any confusion or upset amongst staff and to ensure compliance with the 1997 Act.
7. Holidays are Coming (ii) – Do Not Discriminate
In determining which employees are required to work over the Christmas period, employers should be mindful that under the Employment Equality Acts, 1998-2011, discrimination based on any one of 9 protected grounds is unlawful. These grounds are gender, civil status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community.
Tip: In ensuring that they have adequate cover over the Christmas period, employers should select employees to work during this period based on the business needs of the employer and should be in a position to objectively justify their selection of employees. Employers should be mindful not to target employees on the basis that, for example, the employee does not have children or does not celebrate Christmas.
8. Christmas Bonus (i) - Goodwill Gesture or Employee Entitlement?
It is common practice at this time of the year for employers to give employees Christmas bonuses as a gesture of goodwill. However, in recent years as a result of the economic downturn, employers often ask whether or not they are obliged to give employees such bonuses.
If an employee's contract of employment is silent in relation to the payment of a Christmas bonus, an employee may argue that such a bonus is an implied term of his/her employment contract where there has been a custom and practice of paying the bonus on a yearly basis over a number of years.
Tip: An employer should ensure that its employees' contracts of employment expressly state that a Christmas bonus is payable wholly at the discretion of the employer and is not a contractual entitlement. However, employers should bear in mind that the less they use such discretion, the more difficult it is to rely on it.
9. Christmas Bonus (ii) – Do Not Discriminate
In calculating Christmas bonuses an employer should ensure that if a bonus is based on company or team performance throughout the year that employees who have been on leave of absence from the workplace during the year owing to, for example, maternity or medical reasons, should not be discriminated against or treated less favourably than employees who have not been absent on such leave.
Employers should note that employees on carer's, parental, maternity, adoptive and sick leave are protected against discrimination under the Employment Equality Acts, 1998- 2011.
Tip: When paying a Christmas Bonus to employees, employers should be mindful not to discriminate against employees on any of the 9 protected grounds set out in the Employment Equality Acts, 1998 – 2011 (listed above).
If an employee fails to attend work due to snow travel disruption, they have no statutory right to be paid.
If an employee is stranded abroad for personal reasons it may be a possibility to allow employees to take the days from their paid annual leave entitlement. Alternatively, employers could agree that employees make up the time at a later date.
If, however, the employee is away on a business trip and cannot get back home, the situation may be somewhat different. It is arguable that this time is analogous to an employee being 'on call' and at the disposal of the employer and in respect of which an employee should be paid.
In any event, if an employee can still carry out work remotely, it would be unreasonable for an employer not to pay an employee who was away on company business and who is still working.
Tip: Where an employee is unable to attend work due to snow travel disruption, the employee is not entitled to be paid but an employer should look at each situation on a case-by-case basis and should consider the possibility of an employee working remotely pending the employee's return to work.
11. Deck the Halls
Under the Safety, Health and Welfare at Work Act, 2005, employers are obliged to provide and maintain a safe place of work for employees. While employers' health and safety obligations should not be used as an excuse to dampen the festive spirit in the workplace, employers should be aware of their obligations to employees under the legislation and take common sense precautions when it comes to decking out the office for Christmas.
Tip: Employer's should take precautions such as providing staff with suitable step ladders to put up decorations, making sure that Christmas trees are not blocking fire escape routes or exits, and checking any novelty lighting for defects.
12. Merry Christmas and a Happy New Year from Mason Hayes & Curran
When you have put all our practical tips into action relax and enjoy the festive season.
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.