The Bug may not be the only issue that employers need to consider in preparation for the forthcoming Millennium celebrations. Certainly possible concerns over staff shortages, unauthorised absence and conduct issues should put employers on notice to ensure policies and procedures to deal with these issues are in place, up to date and effectively communicated to employees well in advance.
Following the announcement that 31 December 1999 will be a Bank holiday, it is a good time for employers to identify the terms and conditions which actually apply to the taking of leave. Contrary to the popular assumption, there is no automatic statutory right to either Bank or public holidays. The terms of the employee’s contract will govern the entitlement to holiday. Contractual terms may be expressly stated in the contract or staff handbook or implied into the contract on the basis of custom and practice adopted in a particular industry, or by identifying how the contract has been operated in practice (e.g. where employees have automatically taken leave on Bank holidays over a number of years). If this is the case the custom is likely to have become a term of the contract and the employee will have a contractual right to the leave on that date, whatever his written contract may say.
Many employers e.g. hospitals, those in the leisure industry and certainly those involved in information technology, are concerned about manning levels during the festivities. Some employers are offering handsome cash incentives to work. Other forms of inducement include additional time off in lieu, assistance with travel and hotel accommodation. But if "bribery" fails to secure agreement, what can the employer do to protect its business? First, it must establish a sound good commercial reason for requiring staff to attend on a day which would otherwise contractually be a holiday. This reason may either be precautionary, e.g. IT staff faced with the uncertainties of The Bug, or anticipatory, like hospital, emergency services and bar staff. In either case it must be a good one, sustainable in the Tribunal if necessary, and should not be extended to a wider category of employees than absolutely necessary. Even if consultation then fails to achieve consent, if the benefit to the business outweighs the disadvantage to the employee, then the Tribunals will generally treat a requirement to attend as a reasonable one. An employee’s failure without justification to turn up on the day could then constitute unreasonable refusal of a reasonable management request and so could potentially amount to grounds for dismissal.
Certainly all employers, having identified their legal rights and obligations in relation to requests for leave and requirements for employees to work, should address the issue of absenteeism over the Millennium period and how this will be dealt with should it arise. There is likely to be an issue with unauthorised absence and many employers may consider dismissal as an appropriate sanction for this type of misconduct. The key to ensuring that a dismissal for unauthorised absence is fair is firstly to make clear to employees the potential consequences of taking it and secondly, to ensure that a proper investigation of the reasons for absence is carried out and a fair disciplinary process is followed before any dismissal decision is seen to be reached. Employers must make sure that even where they are suspicious as to the genuineness of an employee’s absence, a proper investigation is conducted and the employee is given sufficient time to produce a sick note. The Millennium does not excuse employers from ordinary unfair dismissal principles. A hasty dismissal is more likely to result in an unfair dismissal claim later. Clearly the advice for employers is to make their policies in relation to leave and absenteeism over the Millennium period clear to employees now and to spell out in writing the consequences of failure to adhere to the policy. This will minimise the risk of successful unfair dismissal claims later.
Another consequence of both Christmas and Millennium celebrations may well be employee misbehaviour (including sexual harassment) following over-indulgence at office parties or work-related functions. Generally, unless a link or connection with work can be shown, an employer will find relying on an employee’s conduct outside work a potentially unfair basis upon which to dismiss. But even where misconduct takes place at an office function and a link can be established with the employment relationship, the employer must still conduct a reasonable investigation and be able to demonstrate that the decision to dismiss was a reasonable response to the employee’s conduct. An employer which in advance of the party season promulgates clear rules dealing with drinking during working hours and at work functions will clearly be at an advantage. With an eye to reducing the harassment risk for the employer, the same Millennium notice could usefully point out to staff the traditional risk of believing at such events that excessive alcohol consumption makes them more sexually attractive than they really are!
Clearly the advice for all employers is that in order to achieve a stress-free Millennium (so far as possible) they should now be putting in place the appropriate staff policies and procedures.
For further information please contact Susan Nickson, Trinity Court, 16 John Dalton Street, Manchester M60 8HS, UK, Tel: +44 161 830 5000.
This article was first published in August 1999 in Hammond Suddards' Employment Newsletter.
The information and opinions contained in this article are provided by Hammond Suddards. They should not be applied to any particular set of facts without appropriate legal or other professional advice.