Employment Advice at Christmas Time
Key Contact: Claire Knowles
Author: Dan Evans
It is the Christmas gift that you forgot to put on your list to Father Christmas this year. Fortunately, there is no need to panic and scramble to try and pull together the advice on Christmas eve as Acuity Law’s employment team has thought of you all and has set out advice that you may find helpful during this festive period.
How to approach a Christmas shutdown period
You should first check the employment or worker contract, as the contract may provide (i) that a certain proportion of holiday is pre allocated to be used during the Christmas shut down period; or (ii) a number of days holiday to be used during the Christmas shut down period that is in addition to the worker’s annual holiday allowance. The employer should notify the workers in writing and confirm how this has affected their remaining holiday entitlement.
In the absence of a clause in the contract, an employer should notify the worker of the days that are required to be taken as holiday. It is best practice for an employer to give us much notice as it reasonably can. As a minimum, the employer must give notice that is at least twice as long as the holiday period that it wants the worker to take (unless there is a different notice period in the contract). This means if the employer is requiring the worker to take 3 days holiday, it must notify the worker at least 6 days before the holiday starts.
If you need the worker to take holiday but you have left it too late to provide adequate notice, you should consult with the worker and request that they agree to take the days off as holiday. If the worker is not willing to agree, you should take specialist advice.
How to manage conflicting Christmas holiday requests
With Christmas being a very popular time of year to take holiday, it can be difficult to accommodate everyone’s holiday requests and still meet business needs.
If the employer is operating over the Christmas period, it should consider how many workers it requires to be in on each day so it can then establish how many are permitted to be off.
An employer can then consult with workers to understand if anyone would rather work over the Christmas period. If there are too many workers who would prefer to take it as leave, you can compromise by adopting a fair procedure (e.g. requesting a minimum number of days that each worker is required to work over the Christmas period, or reviewing previous years and giving priority to those that have previously worked over the Christmas period).
It is also quite common for employers to offer the holiday on a first come first served basis, which encourages workers to put holiday requests in earlier to allow the business to plan ahead.
There is a great degree of flexibility on approving or refusing holiday requests, providing you avoid a reason that is discriminatory (e.g. refusing a holiday request because someone is perceived to not celebrate Christmas would give rise to a potential race or religious belief discrimination claim).
Refusing a holiday request this Christmas
An employer is legally entitled to refuse a request for holiday. The employer is recommended to give a business reason for refusing a request.
If the worker has given the correct notice to the employer, the usual position is that the employer must give notice that is the same length as the holiday the worker wants to take. The contract should be checked as if it provides a different notice period, the notice period in the contract should be complied with.
If the employer does not meet this notice requirement the worker is entitled to take the paid holiday (unless the worker does not have enough holiday entitlement left in the holiday year). The worker must not be subjected to any detriment for taking the holiday.
Ordinarily, if a worker has too much holiday remaining at the end of the holiday year, they will lose the holiday. The obligation on the employer is to encourage and facilitate the worker to take leave but not to force them to take it. However, if refusing the holiday request would result in the worker not being able to take the holiday in the holiday year, the employer should take advice to consider whether it can still lawfully refuse the request.
It is also possible for an employer to cancel a holiday request that has already been approved, but there are increased risks of constructive dismissal claims. It is recommended to always take specialist advice before cancelling pre-booked holiday.
Paying a Christmas Bonus
If the contract or bonus scheme provides the worker is entitled to be paid a Christmas bonus, and the conditions to achieve the bonus have been met, the employer is contractually obligated to pay the bonus.
If the contract or bonus scheme provides that a Christmas bonus is at the employer’s discretion, there is an implied term that the employer will not be unreasonable when exercising its discretion. An employer’s exercise of its discretion will be intensely scrutinized if challenged, so specialist advice should always be sought before exercising discretion not to pay a bonus.
If the Christmas bonus is not expressly written in the contract or bonus scheme but has always been paid regularly on Christmas for a long period of time, it may have become contractual through custom and practice. This would need to be assessed on a case by case basis. An employer should be aware that a worker may challenge the decision and could argue a contractual right to receive a bonus.
As a final point, when making decisions on paying a bonus, it is important that the criteria for achieving a bonus can be objectively measured (e.g. based on performance targets and not objective opinions). An employer should be mindful to avoid paying a bonus for reasons that could be held to be discriminatory. The reasons for deciding how much and who to pay a bonus to should be recorded, to rebut any potential discrimination claim.
Secret Santa is often seen as a fun way for teams to get each other a gift and have a laugh. The only issue is, what may be funny to someone may be considered rude and offensive to another.
An employer will be vicariously liable if an employee harasses another by providing them with a gift which is unwanted in connection with a protected characteristic that violates their dignity or creates an intimidating, degrading, humiliating or offensive environment for them.
It is also possible for a gift that is rude or offensive to harass an employee who was not the recipient of the gift.
It is therefore advisable to make it clear to all employees that any gift provided in a Secret Santa is not rude or offensive and is something that is appropriate for a professional setting. If an employer is to embark on a Secret Santa scheme, it is recommended that a memo be sent round which clearly communicates these expectations.
Offer support to those who may be struggling this Christmas
It is often said that Christmas is the most wonderful time of the year. However, not everyone enjoys and looks forward to Christmas. It can raise difficult emotional and financial concerns for many.
If you have a worker who does not appear to want to be involved in the festivities, it is important not to pressure them. It is often a good idea to arrange team lunches instead of an office Christmas party or as an extra social activity. This may encourage more workers to attend the social event and can be better for building team morale.
An employer should not be afraid to reach out and offer support to a worker who visibly appears to be struggling. It is important not to take on the role of a counsellor, but asking if someone is ok and taking the time to listen and signpost them to the Employee Assistance Programme, or charities such as Mind or the Samaritans, is often all that is needed to turn the workplace into a supportive environment.
We hope you all have a wonderful Christmas and enjoy the festivities. Of course, if you require any advice then our employment team are on hand to support.