UK: R U OK 4 Y2K? What Every Employer Should Know

Last Updated: 16 November 1999

The much publicised Year 2000 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 from the Department of Culture, Media and Sport 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 popular assumption, there is no automatic statutory right to either Bank or public holidays. It is the terms of the employee’s contract that 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. If a particular practice or custom has been adopted it 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. The case of Devonald v Rosser & Sons stated that for a term to be implied on the basis of custom and practice it must be generally established, well known and clear-cut. Therefore it may be possible to imply a term if there has been a regular practice over a number of years in a particular company, to e.g. have an annual shut down over the Christmas and New year period.

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 and assistance with travel and hotel accommodation. If "bribery" fails to secure agreement, what can the employer do to effect a change to the terms of the contract whilst at the same time protect its business? Firstly, 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 reason, sustainable in the Tribunal if necessary, and should not be extended to a wider category of employees than absolutely necessary. Secondly the employer must undergo a proper process of consultation in relation to the proposed change. 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.

Having identified their legal rights and obligations in relation to requests for leave and requirements for employees to work, all employers should in any event 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 such absence 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. In the case of Rampart Engineering Ltd v Henderson an employee who took holiday despite having been refused permission and warned of possible dismissal if he went was fairly dismissed on his return. However, even where an employee has had prior warning that the taking of a holiday without permission could result in dismissal, the employer should still hold a disciplinary hearing to discuss the matter. In Heskey v Adwest Rearsby Ltd the employee went on holiday despite having been refused permission and warned of the possible consequence of dismissal. The employer dispensed with the normal disciplinary and appeal hearings on the basis the applicant was unable to attend and so they would have been useless. The EAT held that the employer should have waited until the applicant had returned from holiday before holding a disciplinary hearing. The applicant should have been given the opportunity to explain their absence and the reasons for it prior to the decision to dismiss being taken.

Clearly the advice for employers is to make their policies in relation to leave and absenteeism over the Millennium period crystal clear to employees now and to spell out in writing the consequences of failure to adhere to these policies. 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. In Williams & ors v The Whitbread Company Ltd employees on a two day training seminar became drunk and rowdy. The evening culminated in an argument which lead to violence and fighting between three employees all of whom were ultimately dismissed. The Court of Appeal upheld the tribunal’s decision that although the behaviour of the employees had been deplorable the employer had overreacted in deciding to dismiss them. The misconduct of the employees had taken place outside working hours and had to be seen in the context of a heavy drinking session which had been paid for by the employer.

Clearly an employer which in advance of the party season promulgates clear rules dealing with drinking during working hours and at work functions and the consequences of any misconduct will be at an advantage. A more cautious employer may even re-consider providing the traditional free bar and risk the allegations of ‘Scrooge’ in preference to tribunal claims !

With an eye to reducing the risk of sexual harassment employers should make themselves familiar with the European Code of Practice which sets out steps that an employer can take to protect employees from harassment. The Code has been used by tribunals in assessing whether employers have taken sufficient steps to prevent harassment from occurring. This will not be a guarantee to successfully defending a harassment claim but will certainly put an employer in a stronger position. Some employers may also wish to point out to staff the danger of excessive alcohol consumption making them believe they are 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 and ensuring that those policies have been effectively communicated to staff.


Clarify an employee’s entitlement to time off

  • there is no automatic right to leave
  • any right depends on the terms of the employee’s contract
  • express terms may govern the right to time off for public or bank holidays
  • terms may be implied by custom or practice
  • where terms and conditions need to be varied establish a sound commercial reason
  • for the change, carry out appropriate consultation and give employees notice of the change
  • make employees clear of the consequences of unauthorised absence and the procedure which will be followed.


Issue a policy statement condemning sexual harassment

  • define unacceptable behaviour
  • make clear that sexual harassment can be treated as a disciplinary offence
  • set out a procedure to deal with complaints of sexual harassment and ensure that the
  • procedure has been properly communicated to employees.


Case references

Devonald v Rosser & Sons [1906] 2 KB 728

Rampart Engineering Ltd v Henderson EAT 235/81

Heskey v Adwest Rearsby Ltd EAT 158/97

Wiiliams &ors v The Whitbread Company Ltd Court of Appeal 19.6.96

Author: Sue Nickson, Partner and Head of National Employment Unit, Hammond Suddards

First appeared in the October 1999 issue of Employment Law Journal.

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