Employment Law Update (November 2008)
Christmas FAQs
Our Employment Law Consultants give their answers to the most
common questions employers ask us at this time of year.
Q - Can I close the business over Christmas and make
sure staff take holidays during the closure?
A – Ideally, a clause allowing this to happen should be
contained in the employee's contract of employment.
If it is not, you may be able to deal with the situation by
giving staff twice the amount of notice that holiday must be taken
as the period you want them to take off (for example, if you want
them to take three days' holiday then give them six days'
notice). You should contact the Telephone Advice Service for
advice if you are considering this. However, you cannot
impose unpaid holidays if staff have not retained sufficient
holiday entitlement to cover the closure period.
Q - What is the best way to avoid a situation where
employees do not have sufficient holidays to take at Christmas to
cover a closure?
A – The situation should be made clear in the contract of
employment and you should also advise employees at the start of
each holiday year of the days they are required to take to cover
any closure. If employees then fail to keep holidays to cover a
closure then you would have no obligation to pay them.
Q - Can I ask my employees to work on Christmas
Day?
A – There is no automatic right for employees to take Christmas
Day or any other day off. The new law allowing four
additional days' minimum holiday entitlement does not change
this.
However, the matter is usually dealt with in the employee's
contract of employment, and you should check the position carefully
before asking employees to work on public holidays.
Call the Telephone Advice Service to discuss the matter if you
are in any doubt.
Q – Do I have to pay double time to employees who work
on Christmas Day?
A – Again, this should be dealt with in the employee's contract
of employment. There is no general legal requirement to pay
extra for working on Christmas Day.
Q – My staff are normally required to work on Christmas
Day and Boxing Day, but some are saying they are now entitled to
public holidays off work due to a change in the law. Is this
true?
A – No. The legal minimum annual holiday entitlement
increased from 4 weeks to 4.8 weeks on 1st October
2007. However, the rules on whether public holidays can be
taken as holidays still remain up to the employer to determine.
Q – We usually get cover over Christmas by asking staff
to work on one of their contractual public holidays in return for
extra money. Can I still do this?
A – Yes. Employers can make payment in lieu of the additional
holiday (above four weeks') until April 2009, but employers should
use this transitional period to ensure staffing levels and rotas
are adjusted to allow employees the full entitlement as holiday
from April 2009. Also remember that statutory minimum holiday
entitlement will increase to 5.6 weeks (28 days) from April 2009,
so employers will have even less flexibility to ask staff to work
on public holidays from that time.
Q - What do I do if an employee complains of
misbehaviour by a colleague at the staff Christmas
Party?
A - Any party organised by the business – even if it is outside
working hours or not on business premises – counts as happening "in
the course of employment".
This means that the employer must do its best to ensure that
employees are not subject to harassment, which includes sexual and
racial harassment. It also includes harassment on the grounds
of religion or belief, sexual orientation, disability or age.
As long as everyone involved understands this – that the same
standards of behaviour are expected as in the normal working
environment – there should be no problems. Any problems that
do arise should be dealt with under the business's Disciplinary
Procedure.
Where an employee makes a complaint about another employee's
behaviour at a Christmas party, you should:
- Treat the complaint seriously;
- Deal with it under the business's Grievance or Bullying and
Harassment Procedure;
- Investigate fully, including obtaining statements from any
witnesses;
- Take Disciplinary action against the wrongdoer, if
necessary.
It is most important that you discuss any complaint made by an
employee in these circumstances with the Telephone Advice Service,
who can give you all the help and guidance you need.
Q – Staff often seem to call in sick for odd days over
the Christmas period. I suspect this has more to do with
consuming too much alcohol than genuine sickness. Is there
anything I can do?
A – This highlights the importance of operating robust absence
procedures throughout the year. Procedures include:
- Rules for absence reporting;
- Operating "return to work" interviews;
- Rules on payment of Company Sick Pay.
The important thing is that such procedures are operated at all
times, so that staff are in no doubt about where they stand.
These procedures are all outlined in your Personnel Guidance
System.
If you require any advice at any time during the festive season,
remember our Telephone Advice Service is available 24 hours a day,
365 days a year.