Christmas FAQs

Q What do I do if an employee complains of harassment by a colleague at the staff Christmas Party?

A Any party organised by the business, even if it is outside working hours and even if it is not on business premises, counts as happening "in the course of employment" . This means you, as an employer, have certain legal obligations.

You must do your best to ensure that employees are not subject to harassment on any of the following grounds:

• Sex;
• Race;
• Religion or Belief;
• Sexual Orientation;
• Disability;
• Age.

As long as everyone involved understands that the same standards of behaviour are expected as in the normal working environment, there should be no problems. Action can be taken against wrong-doers in accordance with your organisation'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 your Grievance or Bullying and Harassment Procedure;
• Investigate the complaint 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 Employment Law & HR Advice Service, who can give you all the help and guidance you need.

Your New Year's Resolution

Click on the following link to find out more about how to deal with bullying and Harassment at work.

How to prevent and deal with bullying and harassment in your organisation

Q We organise a Christmas party every year, but there are always some staff who refuse to attend. I think they are not good "team players" and are letting the business down. What action should I take?

A Christmas parties are generally good for staff morale and in these difficult times it is to your credit that you treat staff in this way.

If some staff are not attending, the first thing to do is to (gently and without making accusations) find out why. There could be practical problems which prevent them attending, such as inability to find childcare. There might be issues about whether some members of staff feel excluded by the type of event you're planning. Have you considered that some people might avoid events where drinking alcohol is the norm for religious reasons, for example?

Remember that the makeup of the workforce is much more diverse today that it was even a few years ago, and if you always do the same thing for employees at Christmas, perhaps it might be worth trying something different – and possibly a different time of day – this year to try and ensure everyone is included.

Your New Year's Resolution

Take a look at our MentorLive guidance on Diversity for further information.

Q We have a staff party during working hours around lunchtime – and we all have a drink - but we expect people to go back to work afterwards. Are there any risks in this?

A This situation is not unusual, but it does pose the question of how you deal with the issue of possible alcohol intoxication at work. Intoxicated employees can be a risk to the Health & Safety of other employees, customers and themselves.

The safest advice is to apply your rules consistently as you would at any other time of year. This ensures people can have a drink, but if they become intoxicated they will be sent home - normally without pay. You should make absolutely clear before the event what your policy is and the consequences of non-compliance.

Q Can I close the business over Christmas and make sure staff take holidays during the closure?

A The first thing to do is to check whether you have a provision in your employees' contracts of employment to allow you to do this.

If there is no provision in the contract, you can still 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 staff to take three days' holiday then give you must give them six days' notice – and put it in writing.

You should contact the Mentor Employment Law & HR Team for advice if you are considering this, to make sure you are following the correct procedure. But remember that you cannot impose unpaid holidays if staff have not retained sufficient holiday entitlement to cover the proposed 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 employees' contracts 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 for time off during the closure period.

Your New Year's Resolution

If you've not done so already, why not use your personal Employee Records and Management Tools area on MentorLive to calculate and log your employees' holiday entitlements in 2011? Speak to your Employment Law & HR Consultant if you need more information.

Q I've heard that if I make special arrangements such as extra pay for working Christmas Day then it's religious discrimination because I don't pay extra on any other religious holidays. Should I get rid of the extra payments altogether?

A Employers have increasingly diverse workforces and it can be no easy task dealing with different religious holidays. Bear in mind what might be appropriate for one employer might not be appropriate for another. However, it would be wrong for employers to use the threat of religious discrimination for "levelling down" – or even for "levelling up" – additional payments for working on religious holidays.

The first thing to bear in mind is what contractual rights your employees have to additional payments for working over Christmas. These contractual entitlements cannot easily be removed. It also remains the case that Christmas remains a national holiday in the United Kingdom, and it is widely recognised among all religions and the non-religious as having a special status.

However, depending on the religious make up of your workforce, it might be appropriate for you to consider making arrangements for other religious holidays. Before you do anything, take advice and also consider consulting with your workforce on what arrangements they would consider appropriate.

Q Can I ask my employees to work on Christmas Day?

A There is no general right in law for employees to take Christmas Day or any other day off. The recent extension of statutory minimum annual holiday entitlement from 20 days to 28 days does not change this.

The matter of when employees are entitled to time off is usually dealt with in their contract of employment. You should check what this says and any rules there might be about such things as additional pay or time off in lieu before asking employees to work on public holidays. You should also bear in mind that employees who work five days a week or more are entitled to a minimum of 28 days' holiday each year, so take care that asking someone to work on Christmas Day does not take their holiday below this level.

Speak to the Mentor Employment Law & HR 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 There is no general legal "right" to extra pay for working on Christmas Day. Any entitlement to additional payments will be contained in employees' contracts of employment.

Usually, the situation will be made clear in a written document such as the Statement of Particulars of Employment or in the Employee Handbook. But if there is nothing stated in writing, you will need to consider whether it is "custom and practice" for additional payments to be made for working on Christmas Day. That is, if you have always done it, then it is probably a contractual entitlement even though there is nothing in writing.

Speak to our Employment law & HR Advice Servcie if you need help to clarify the situation in your business.

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. Although the legal minimum annual holiday entitlement has now increased to 5.6 weeks, the rules on whether public holidays can be taken as holidays still remain up to the employer to determine.

Your New Year's Resolution

If you have problems with getting Christmas cover this year, why not speak to your Employment Law & HR Consultant to see what can be done for the future? It might be as simple as setting out closure dates or Christmas rota dates much earlier in the year, for example, or it might mean changing your contracts of employment to make sure they meet your organisation's requirements.

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 or wanting to go shopping than genuine sickness. Is there anything I can do?

A Although you can rarely be certain that an occasional day's absence is being taken as a "sickie", the problem can be reduced if you operate robust absence procedures throughout the year so that employees are clear about your rules and the consequences of non-compliance. These 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.

Under Statutory Sick Pay rules, the first three day's sickness absence is unpaid – which should serve as a disincentive to taking odd days off. If your organisation has a more generous sick pay scheme, you should consider whether changes could be made to discourage odd days' sickness absence. The Mentor Employment Law & HR Team can help with this.

Your New Year's Resolution

Check that you are operating robust absence procedures and that

For full guidance on absence procedures, click on the following link to MentorLive:

How to successfully manage, monitor and control employee absence.

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.