Employment Law at 11: Christmas Parties Special

Posted in : 'Any Questions' Webinar Recordings on 6 December 2019
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered:

In this webinar, we will discuss questions on the 'love-it-or-hate-it' Christmas Party and will look at issues such as:

  • Legal Risks of Christmas Parties and what strategies can employers follow to mitigate the prospect of claims arising
  • Relevant policies, e.g. codes of conduct, social media, bullying and harassment etc.
  • An employer’s duty of care
  • Dealing with complaints arising post-event

The CIPD has reported this week that employers are taking an increasingly conservative approach to the Christmas party season, as fear over the reputational and legal fallout from poor behaviour at festive get-togethers causes them to scale back their plans or take measures to safeguard staff.

Initiatives such as chaperones, alcohol-free events and strict guidelines on conduct are increasingly in force as employers and their HR departments respond to the fallout from notable party-related legal cases and a growing intolerance for potentially offensive or discriminatory conduct.


Scott: Good morning, everybody. This is Scott Alexander from Legal-Island. I'm here with Seamus McGranaghan from O'Reilly Stewart Solicitors. We're live in Belfast. If you hear any noises, it's probably Santa coming down the chimney or little elves making up the presents and such like.

We're doing a Christmas party special today you'll be glad to know. So any questions that you have, use the little question box as we go through a number of questions that have come in. But before we do that, of course, let's have a poll which will set the scene. All the questions and indeed the subject that we're going to be covering today. So, there's the first question in front of you.

Poll Questions

Does your organisation have a policy that covers such events as the annual Christmas staff event?

Employment Law at 11 Christmas Parties Special 2019 poll question - staff events policy

Does your organisation support or organise an annual staff Christmas event?

Employment Law at 11 Christmas Parties Special 2019 poll question - Staff Christmas event support

Does your organisation permit the consumption of alcohol at the annual staff Christmas event?

Employment Law at 11 Christmas Parties Special 2019 poll question - staff alcohol consumption

Have you ever had any complaints arising out of the staff Christmas event?

Employment Law at 11 Christmas Parties Special 2019 poll question - christmas party complaints

Annual Leave during the Seasonal Holiday Period

So, let's start with the first question.

What's the best way, Seamus, to calculate pro-rata bank holiday entitlements for part-time staff? Is there any recommendation in law or good practice? Lots of methods are out there on the web. For example, one of our staff has just reduced their hours from 35 hours to 30 per week from 5 to 4 days. So she is working more hours per day than the other staff, but over a four day period. I know how to calculate it. But should the calculation be pro-rata on days or hours worked?

Seamus: Well, this is always a relevant question because we get so many queries about it. And Rolanda was saying, just when we were talking previously there, that when she was in the Labour Relations Agency, they just get a vast amount of queries about holidays for part-timers and pro-rata and things like that.

I think the basic position on this one is that your part-time staff and for those that maybe, you know, work on a Monday. I mean, a lot of our bank holidays fall on a Monday, and we even have some that fall over the Christmas period here as well. But the bank holidays can negatively impact a part-time worker if that's the day that they're working on, because they're automatically losing that day out of their holiday entitlement if they're only getting the pro-rata on the 28 days. So, they're losing a percentage of that. So, it can be somewhat unfair. And the guidance and certainly I think that the best way to look at the holiday entitlement for part-time staff is to look at it on hourly basis rather than working on the number of days worked.

And I think that certainly a lot of my clients have moved in that direction to look at it on an hourly basis. And look you can go on to the gov.uk website.  They have various calculators that you can use, and it actually does on the drop down ask you whether you want to calculate it in days or in hours. And it can be very straightforward if you've got a full-time employee and you're working on the days. But when it comes to the part-time and certainly when you're looking to pro-rata, I think it's a much fairer process to look at that on an hourly basis. There's always that basic position that the entitlement is 5.6 weeks per year.

Scott: So that's under the Working Time Regulations as opposed to the Working Time Directive, which is 20, and as opposed to whatever extra you get under your contract. So, let's deal with the 28 days or 5.6 weeks.

Seamus: If we look at the 28 days and the 5.6 weeks, there is a risk certainly to part-time members of staff that if you're pro-rata or not, that they're going to lose out in terms of holiday entitlement. And so, I think the safer way to do it and the fairer way to do it is to calculate on the hours. And it is a matter that does arise, and there are various things that companies will do. Organisations will say, "Well, look, listen if you work some additional time on a day where we open longer, you can maybe get the benefit of a half-day somewhere else along the lines of it." And a lot of the time it does balance itself out.

But a good idea is really to, you know, do the calculation on both the days and on the hours, and you'll see yourself the difference there. And often that's not a massive difference. But it is fair, and you're working on morale and, you know, keeping a happy workforce, it's a good idea to sit down with the employee and show them the calculation, show them how it's been worked out and how you are attempting to be as fair as possible with them. And I think that goes a long way too for good employee relations. So, I would definitely work it on the hours.

There is a basic calculation that you can work through. I don't want to get too technical about it. But you know, if you look at the number of hours worked per week and you divide that by the number of hours in a full-time week and then multiply that by the number of bank holidays times the number of hours per working day, that's essentially what the calculation is. But rather than having to be at that long-winded way, if you go on to some of the websites there, you can fill in the various boxes and it will spit out your answer for you at the end.

And I guess the best thing to do is take the calculation and, you know, attach it to the payslip. Or if the employee has raised a query about it, bring the employee in and show them how the calculation has been worked through and what the outcome is to it.

Scott: Yeah, there was a case earlier, the Brazel against Harpur Trust case, which showed that you can have anomalies when you have part-time workers or people who don't work the same as full time, and there's nothing in law which prevents an employer from giving a bigger benefit to part-time workers if that's the way it works out. And there's no real complaint that can be made by a full-time worker because they're not protected. It's protection for part-time workers that we're looking at here or part-time employees that we're looking at under the legislation.

So if there's anomaly and you err on the side of safety and give a part-time worker a little bit more, or indeed if that's the way you have to calculate it, if you look at the Harpur case, then just so be it. You know, it's one of the things you do. That was a permanent, It was a different system. They were working term times.

Seamus: Yeah. Well, you're dealing with permanent members of staff, but it's the staff members that don't work the full year. So it's the likes of if you have somebody that only works term time or if you have a, in this instance I think the employee was a music teacher and zero hours worker contract peripatetic, was coming in and was only working, you know, a certain, maybe eight months of the year or something like that.

It's interesting that case we talked about it previously, and the uplift for that employee was that whenever they worked it through on the standard advice that ACAS have actually given out, so the employer and the Trust at the time had taken ACAS' advice that the entitlement was working out. They were given about 12.07%.  But whenever the Court of Appeal looked at the case and worked through it on the Working Time Regulations, they were coming out at the 17.5% was what the uplift was for the employee in relation to holidays.

So not a massive difference in the range, you know in around, the 5% or whatever it is, but at the same time, you know, you have to think about the commentary in relation to the Harpur Trust and Brazel case is  that there would also maybe be claims for back pay as well. So, it could add up if it's not done properly. So it's all about trying to be as fair as possible with the employees.

Scott: Okay. So we'll come back to that. I can see a question has just come in there on the holidays - we'll come back to that. But we want to spend most of the time here on vicarious liability and Christmas parties and Christmas spirit indeed. So, let's move on to the first question on that.

Vicarious Liability and Christmas Parties

Why can employers be held liable for any acts of harassment that occur at a Christmas party?

Seamus: Well, the general position in relation to vicarious liability is that the employer can be held as vicariously liable where the employee carries out any sort of discriminatory acts or acts of harassment in the course of their employment. So that's the basic position. If it's something that happens in work, the employer can be liable.

And the reason why it can apply to a work social event is that the courts have been very clear that those work events that take place outside of the office and outside of normal working hours are viewed as events that are regarded as an extension of the workplace. So, the law is very clear in relation to that.

So, what that means is that if you're organising a Christmas party, and it's taking place on, you know, the 21st of December and it's at 7:30 in the evening, the law will view that as an extension of the workplace. So, the normal policies and procedures that apply to your employment should also apply during those events also, and it also means that the employer can be held liable for anything that happens during that period.

Now there are some exceptions to that, and I have to say that we're not trying to make people think that they shouldn't be providing Christmas parties and the likes. But there are examples, and there's clear examples where liability has arisen for the employer from a Christmas party.

Scott: You're trying to balance out the fact that it is an extension of the workplace now so you could well be held liable for anything that happens, including personal injuries, harassment and so on. But at the same time, you're trying to bolster morale.  Now, round about 50% or 40% of our audience here have had problems that have arisen over Christmas party. I'm not surprised. The other 50% or so they're going to arise sometime, so don't worry, particularly if you have no policy and you keep providing them with drink, it's likely to happen.

So, you're trying to balance out that keeping up the morale and hoping that nothing happens. And I suppose the rest of the questions that we'll be looking at are really trying to get that balance right between, okay, let's thank everybody for the end of the year and the work that they've put in, but at the same time keep a lid on it here. It's not a free for all at the Christmas party time.

Seamus: I mean, I think it is a balance, and, you know, there's lots of people in employment really look forward to the Christmas party. For a lot of people, it's seen as a sort of end of the year acknowledgement by the employer of the hard work that they've put in, and whether that the employer has organised an event or a dinner or some sort of way of thanking their employees for their hard work during the year. And it does sometimes come across as mean spirited, particularly at Christmastime where employers don't take that step, but the reality is that there is liability that attach to this.

So, the Christmas party itself, it's deemed as a work-related event. So, the actions and comments of any employees at the Christmas social event, they can constitute acts that are carried out in the course of their employment. As a result of that, then the employer can be held vicariously liable for the actions of those employees, and that could be for discrimination, harassment, victimisation. I'm more thinking in terms of the employment law field, but equally, as you mentioned, it could also include anything relating to personal injuries that take place. And there's a number of cases, you don't have to search too far, where there have been, you know, assaults between staff.

And really if you do think about it, if you know members of staff that don't get on or where there's issues have been festering and they're out together and there's alcohol taken and, you know, defences come down a little bit, people speak freer whenever they have alcohol, and you can anticipate issues that are going to arise.  And really, what the employer needs to do is to take steps in terms of well, number one, acknowledging that those issues could happen and, number two, trying to do some preparation around that.

Can an Employer Limit Potential for Vicarious Liability?

Scott: Okay, on that preparation: Is there wording that could be used to close off Christmas work events, for example, like at 11:30? which is quite late, you know, well past my bedtime, Seamus, or midnight, for example, no way. Thereby what occurs after this time is not an issue. So, trying to limit liability, say, okay, we accept that the Christmas party is an extension of the workplace, but after that point, we have nothing to do with it. You're on your own.

Seamus: Yeah, I mean, the case law has developed a lot over the years, and I'm going to speak in relation to a 2018 case there. I think we maybe have touched on it before. But, you know, the position is that employers have tried to limit it, and they've said, well, listen, you know, if we're having an event, our event ends at if it's 11:30 or whatever time it is, and that's the end of the night, what happens after that is no longer our responsibility. And the law has . . . the developments in relation to the law in that respect are that it's not just as straightforward as the employer saying that.

I want to mention the case of Bellman and Northampton Recruitment Ltd. This is a 2018 case. This was a work Christmas party case, and it involves specifically a very responsible managing director. So, the MD organised and paid for the Christmas party and also arranged an after-party in a nearby hotel for the employees.

Scott: So, after the party they had an after-party. Said, let's go for some more drinks back at the hotel, which have been paid for by the work.

Seamus: Exactly. And this was anticipated. It had been arranged by the managing director and for after the Christmas party. At the after-party, there was work-related discussions about a new employee, and that turned into an argument.  And the MD actually punched the appellant in the case twice, and this employee sustained a serious brain injury. And the question for the court was whether or not the company was vicariously liable for the MD's actions.

Scott: That's the company, not the MD.

Seamus: Not the MD.

Scott: So, the MD did the punching, but because he . . . well, he owned the business, because he was a responsible manager, then the company could have been held liable and ultimately, they were.

Seamus: Yeah. And, you know, you can think of maybe of an insurance company being involved here and trying to defend a case like this and maybe putting down the marker to say, well, there's a difference between the managing director and the company because it's a separate legal entity. Initially, the court held that the company wasn't liable. And then on the appeal, it was found that there was a sufficient connection between the managing director's field of activities and the assault.

Scott: So even though he's not employed to assault his staff, it was close enough to a work-related activity. He was the boss and he was leading the Christmas party and it was a work-related event. That was close enough, even though they weren't doing any work. They were just having drinks after hours in a hotel bar.

Seamus: Absolutely. And there was a distinction tried to be made between the Christmas party and the after-party, and the difficulty was that the after-party was arranged by the managing director. And what the court said that whilst they took that into account, the basic position was for that it was that they looked at the background of the evening's events and they were able to associate the two events together.

And the court also said that the managing director had been fulfilling his managerial duties for most of the evening and that he wasn't just present there as a reveller or as an attendee at the party, but also in his capacity as managing director.  And they were very critical in terms of what they said was the attack arose out of misuse of position and trust of the managing director.

So, it raises the bar somewhat I think for people or employees in management positions within companies attending Christmas events as well or any kind of Christmas or any social event that the company will have. They're in a trusted position, and the liability, you know, they're set apart and there's a higher standard that's expected from those individuals.

Scott: I think if you’re out and on some kind of party or whatever, you don't suddenly stop being the MD or a manager or whatever position you are with your colleagues just because you're not in the workplace.  Everybody knows you're the boss.  Everybody knows there's a relationship. We have a question that's just come which is not dissimilar I suppose.

We are having separate Christmas parties for teams or shifts this year. Who are the responsible people at each?

Mainly have no manager present. So, what do you think there, Seamus? So, we've got different groups having different parties rather than one big one, which may or may not be a good thing, but they may not have, if you like, a responsible manager.  But supposing say there's a shift manager or a supervisor or something like that. They don't have to be the MD.

Seamus: No. Anybody in a position of responsibility. If you're not a manager, but you're a supervisor or a team leader or something along those lines, I suppose that's a play on roles, but, you know, presumably, there's somebody with more authority than what the group itself has, the HR manager would need to sit down with that manager or with that person and have a good conversation with them about responsibility, what the expectations of the company are.

And also, it's important to relay that back to the employees. And I suppose this question itself was about, you know, what are the steps that we can take to try to minimise? I did come across there an article yesterday evening, actually that Michelle McGinley of EEF had produced, and it's very helpful. It's on LinkedIn, and she discusses various aspects of things that the employer can do. But you need to consider the level of involvement that the organisation might have in the party or any after-party or continuation of the celebration, and it is helpful to have a cut-off point.

And I think that if you're going to have a cut-off point, what you really need to do, if you look at Michelle's article that she has done, she has a sort of draft memo to staff that will be issued in advance of the party.  And I think that that is helpful so that everybody knows. If you look at what the draft is, you know, you're reminding people of the standards and the expectations for the event. That it's not a matter that, you know, that it is a work-related event, that all the usual policies will apply in respect of dignity in work and things like that.

But I think it's also helpful to be clear in writing with the workforce that if it is a work event, that it finishes at a certain time, and it's important then that anyone in responsibility also leaves the event at that time. I think that the risk is that if management stay on after a period of time and maybe like, you know, maybe they're having a good night and the craics good, but they have to bear in mind that, you know, the longer they are, the higher the liability and the bar raised as is in relation to liability.

So, if you're going to try and set a limit and say, well, our event ends at 10:30, for instance, you need to sort of have a marker down that it did end. Whether it is that, you know, there has been a meal provided and drinks, that the drinks are ended at that time, that there's not another, you know, hundred pounds left behind the bar for them to continue on after you leave, you know, that you're really looking at a cut-off point. And if you're in the unfortunate position of having to defend one of these cases, that sort of evidence is going to help and assist you in saying, "Well, look, our event ended at this time and our liability stopped at that time also."

Scott: Yeah, there's a question came in there, which I think you have maybe answered, about not just sending a letter, but speaking to the staff members or reading something like beforehand. It's not enough just to say, oh, we sent a memo around, because you might well be asked, "Well, who read that memo and what about the managers and were they informed?"

And, you know, the downside of that though is that if all the managers leave, you do kind of set up a them and us situations. And it's all about balance. If people are enjoying it, then that's great. But I have never been to a works do ever where the conversation didn't turn to work and the individuals and their personalities after a few drinks have been taken. It's just what happens.

Seamus: It is what happens. And other things that may be the employer can look at is that, you know, that they can say, you know, that the end of the night will be at a certain time and maybe that they'll look too, again with their duty of care how people are getting home. Maybe they've organised a bus to take people home or taxis to take people home. It gives a finality to it, and it might assist in relation to just ending it.

But there's no doubt that, you know, for some people, as I said, it's the one night of the year that they might get out, and it's the opportunity where maybe the company are buying them dinner and there's a few drinks. Some people may take a mentality of, well, if the company has provided, I'm making sure I get my worth out of it. I've worked hard all year.  And some people go hammer and tongs. Hopefully, you know, if there have been previous Christmas dinners or any of these social events, sometimes you do know the personalities that you're dealing with. And you think, you know, they're always good fun when they're out, but there's maybe a tipping point. You know, if you're a manager there and you see something happen, you should step in and make sure that you take the appropriate stance when it comes to things.

So if you see someone that is maybe looking like it's an intense conversation or where the person has become upset, you're there in your capacity as the manager, it is a work-related event, you should deal with it. I don't think anybody should be shying away from their responsibility. And again, it comes down to being responsible and not taking too much alcohol yourself.

Scott: Okay. It reminds me a wee bit of the smoking ban and when the smoking ban first came in, the smokers would get a bit upset because their freedoms were being taken away. It's just the way that society has moved. And I remember when I worked at the Labour Relations Agency, and the gangs used to get together, and they would do a kind of review, where they would absolutely rip all kinds of things out with management. And drink had been taken, but it would impersonate. Yeah, I don't know if you remember with the ban on Sinn Fein speaking on public broadcasting at the time, but they had a guy called Jim Lenaghan who had a beer or whatever and he was playing Gerry Adams speaking, and then another character would be doing the voiceover in the voice of Daniel O'Donnell.

But it was very funny the stuff we used to do, but a lot of it was work-related. I think it was kind of banned when eventually it took the PA of a manager whose tie got caught in the shredding machine and they all turned up with shredded ties. So, it's a shame that that stuff goes by but by, but I suppose that's the way it's going.

Seamus: And standards have changed. And I think the other point that's relevant is that our workplaces are now so much more diverse than what they've been in the past, and a Christmas party might not be for everybody. And employers do need to give thought to employees that maybe don't go to the Christmas party, don't enjoy it.  Do they feel then that their reward at the end of the year is diminished because they don't attend, they don't go, or maybe they've previously had a bad experience at a Christmas dinner and have made a decision that they don't continue to attend.

Obviously, look, you know, if there's been events that are being arranged, just while we're on the topic of liability, things that maybe that we don't think about are that, you know, not everybody within the office may be of a Christian faith and they may not be, you know, willing to attend Christmas dinners on the basis that it's not within their faith, or alternatively that they may have their own demands within their own faith at the time as well. So, it's being careful about that and careful around discussions that happen at office parties in relation to those sorts of matters.

Other things as well that would come to mind are that, you know, if you have people with allergies and making sure that if you're offering food, that it is, you know, appropriate for people and that it's not causing anybody any offence. That you're not going to have, you know, people getting ill or anything with that arising, because that is an extension of workplace that could certainly form part of your liability.

Scott: There may be issues about who's liable. Is it, you know, the caterers, or is it the employers? But nonetheless, there's going to be an issue there if somebody gets sick under your watch, and that's what we're trying to avoid. That doesn't mean to say that you don't dish food. It might just mean that you don't have peanuts in the food if there's somebody with a peanut allergy.

Seamus: Exactly. And I think where there is an offering of alcohol, it's always a good idea to offer some type of food. That would be the guidance you would read online that, you know, if you are looking at alcoholic beverages being served and things like that, that if there's food being supplied, it will assist in terms of people not . . .

Scott: Not getting so drunk so quickly.

Seamus: Not getting so drunk so quickly, absolutely.

Scott: There is also issues that not all Christmas parties are paid for by the employer. And, you know, sometimes employees have to make a contribution. Certainly, when I was in the public sector, it's just there wasn't the money around. It's difficult to justify when things are tight that the employer pays for everything. So not everybody would contribute and, therefore, not everybody got into the party, I suppose. But if it was held on the premises, the employer is still going to be eligible for liability. They've helped facilitate it, if you like, even if they're not taking part in it.

Seamus: And it's an extension of the workplace. And some employers certainly that I know have said, "We're not holding a Christmas party. We give an annual bonus, and that's your thank you, that's your reward, and we don't get involved in Christmas parties."  But whenever they know staff are going out, they'll maybe give them some money on the way out the door to buy a drink, because they don't want to be mean spirited. But the giving of that money then could potentially attract the liability then as well.

Scott: Maybe not for one drink. They might be okay on that.

Social Media and Christmas Parties

There's another thing that does come up quite a lot, and that would be social media now. Again, going back 20 years, I'm quite glad there wasn't such a thing as social media in the past, because people will be live streaming it now. They'll be putting it on Snapchat and whatever and on Twitter feeds, and that's a very dangerous combination where you get employees wanting to be revengeful or even thinking it's just funny. But people do silly things. They fall over with alcohol. There's a reason you don't drink and drive, and there's a reason why you shouldn't dance and drink. But people do those kinds of things. So maybe take us through one or two things there.

Social media happens. The employer might not be there. You said if the manager is there and they see something happening, then they could step in.  But the social media thing couldn't be included in the policy.  I don't think it's in Michelle's one, but you could put it in there. But even if it's not there, you still have to deal with the fallout. So, you get an employee, takes a picture of Scott, puts it on the internet, and Scott gets very upset because it makes him look unflattering.

Seamus: Yeah. Well, you bring it back to its basics, and maybe, you know, the idea of photographs and videos. And it used to be, in the old days, where somebody who brought a camera with them, and certainly we have in our office we have photographs in the office of Christmas parties from 20, 25 years ago, and we all have a good look and laugh at them. But now with obviously with the technology and camera phones and this as you were saying the ability to even live stream during those events.

So, you know, we're going back to sort of data protection issues in that sense, and this certainly would arise where people are appearing in photographs and where they haven't consented and things like that. Now a lot of people can say, look, if you pose and you smile for the camera, is that consent? But under GDPR certainly, an image can be classed as personal data when an individual employee can be identified from the image directly or when using the image maybe in conjunction with other available information on social media.

So, the best approach should always be that there should be consent and that the consent should be given willingly by anybody that's going to be photographed or any photos or videos that are going to be posted.

Every year you do hear of stories of maybe somebody that has taken it too far on Christmas do with alcohol. They've done things, or someone has taken a video footage of them dancing or maybe where they haven't been feeling well and things like that, or sometimes laying in the seat sleeping. And people can be very offended by that afterwards. And it can seem very funny and a good idea to post those things at the time, but certainly, you could imagine the employee subsequently raising a complaint or bringing a grievance to the employer about it.

Some fault can be in around the fact where employers can close their eyes to things like that and say, "It didn't happen in the office. It happened outside of work, and we are not responsible." But it does impact them. It does have an effect on employee relations within the office. And certainly, my advice would be that where you have a circumstance like that arising, that the company would treat the grievance seriously and where they would investigate and potentially there could be disciplinary proceedings following on from it.

So, I don't think that it's straightforward enough for the employer to say, " Well, look, this wasn't our workday. We didn't arrange it. There was a couple of you went out of the office for a few drinks. It got out of hand. That's your problem. That's your difficulty."

Where it has an impact in work, it's the employer's difficulty as well. You're going to have to be seen to be dealing with those issues and applying reasonable measures in relation to them as well. And that's why maybe the idea of the notification to the staff to remind them of your social media policy and that it does apply outside of the office in relation to these work-related events also. And it's just, you know, protection from the employer.

And I'm not trying to be a bad, bah humbug, or saying, you know, you can't have these sorts of events at all, because they're important for members of staff, but it's just about protecting yourself. And it goes a long way just to make sure that if you've communicated that in writing or maybe you've had a discussion with a couple of members of staff that, you know, can get a little bit rowdy, to say, "Listen, this is what our expectations and our standards are." If it falls back on you, at least you've got that to demonstrate.

Scott: And it doesn't particularly matter where it's a Christmas party or anything else. If two people fall out at work because they were friends and they stopped being friends for whatever reason, you still have to deal with the fallout. And if that's a performance issue, whether you take disciplinary action or not, you still have to deal with the fallout.

And a few years ago, there was a case of Teggart and TeleTech, where Mr. Teggart became very crude over a particular employee. And she didn't even know about it. It was somebody else pointed out it was on the Facebook page, and that was taken through. Now he tried to argue at the time it was a breach of human rights, because he posted it on his own time on his own Facebook page, and that was given short shrift. It just doesn't stand up.

Facebook is public, and he's put it on the public. It's out there. Employers can access those things. It should be as well taken screen prints and such like if you are gathering evidence or trying to get as much as you can, but it will impact on it. And if employees are daft enough to start some kind of campaign on Facebook or elsewhere on social media after a Christmas party, then they will be held liable and their employer will do something about it.

Seamus: Yeah. And it's the risk of the aspect as well. I mean, I think the TeleTech case is as an eye-opener for anybody that would want to read it and just in terms of how seriously the case was treated itself, but it's also that aspect of the comments then that come on the photographs or on the videos that are put up on social media, because it doesn't just impact the people that are in the workplace. It's to a wider audience as well.

And you could imagine someone becoming very upset if there has been embarrassing footage put on or something along those lines. And there's some people for personal reasons just don't want to appear on social media. They don't want their photograph and their image up. So, it's important that the employer deals with those issues and deals with them quickly as well.

I don't think that there's a risk that the employer could become, the liability could increase again if the employer doesn't deal with the matter quickly if the event takes place in the last day of work and the office is closed for a couple of days, it's just important that you are dealing with it as quickly as possible.

Holiday Pay for Bank Holidays during the Christmas Holiday Period

Scott: Okay, and I want to go back to this holiday question then, if we've time. There are just one or two issues about the 1976 orders on sex harassment, which is likely to be the main area of harassment you're going to get at Christmas.

I have inherited a contract that states if you work bank holidays, you get paid, and if you don't, well, you don't get paid. That's fair enough. However, to ensure working time directive, etc., I've been using an hourly formula. So in the month there is a bank holiday, how would you pay your employees whether they are contracted to work on that day or not?

Seamus: Well, I think the bottom line is that if they work the day, they should get an alternative day off in the month earlier in the year, I mean, if they agreed that if they have to work it. If they get the time off in relation to it, it solves the issue I suppose. And it'll depend whether if they use it, then they lose it as a holiday, and it comes off their holiday entitlement and whether they're getting the 28 days or any additionality. But certainly, my view on that would be that if they have to work it and they're obliged to work it, that they should be given another day off later in the year.

Scott: Just on those holiday ones, there's no right to overtime if you go to the 25th, 26th tend to be bank holidays for most people here. Certainly, January the 1st as well would be a bank holiday. There's no right to overtime in law as such, for most people anyway.

Seamus: Yeah, I mean, the issue there I suppose is really that traditionally overtime or, you know, whether it's time and a half on the day or wherever it is, that it's an incentive to have the person work that day. And the tradition from that has grown really because maybe employers have struggled to ensure that there's continuity in the business with having somebody present on a day like that, but there's no obligation to pay them.

If there is a member of staff that's willing to work it and hasn't put a holiday request in, then it's normal pay in relation to it, you know, or alternatively, if it is a day that falls under an extended working day or something like that, the employer can offer that out to the employees. The employer doesn't need to incentivise employees, and some people, you know, Christmas can be difficult for a lot of people as well and some people are happy to work over the Christmas period as well. And it may be that they'll take the time later in the year if it works for them, but not necessarily does that mean that you have to pay double time and things like that.

Scott: I just asked because it depends on circumstances. A question in there about we used to take these days as closures, but now things have changed. You can see the way that's happened with shops and, you know, the January sales they start on Boxing Day. People used to be closed. Now they're open and things do develop over time. A lot more people going out for Christmas dinner rather than staying at home, and therefore hotels and restaurants and such like now open on Christmas day. So, to change that contract, you've got all the issues about contractual change that we've discussed in the past, and that's not easy. But the reality is you probably will have to incentivise that.

Seamus: I think that's the reality of the situation absolutely. And society has changed. And there has been a move away now from, you know, sort of traditional closure days, and people are much more willing to work on those sorts of days to take time off later in the year.

But if you have a practice set up and a procedure whereby you've traditionally closed over the Christmas period, maybe there's a demand on your business and you're thinking about opening the business during those days, to go back to those employees and ask them to work during that period, they're going to say, "Well, that's changed my terms and conditions of employment." And the likelihood is that they're going to say, "Well, if you want me to work it, you're going to have to give me something for it."

It will probably come down to incentivising the employees and maybe having to look at, you know, that you get double time or that you get some sort of other reward during the year in relation to having worked those times. So, it is . . . I mean, you can always look at the employment contract. The contract may have some kind of, you know . . .

Scott: Flexibility or something.

Seamus: It may do. But if there's been a practice and procedure in place, where the business has been closed, really I think it's about consulting with the staff, explaining the need for the business to be open, and seeking for people to, you know, nominate and come forward to work on those days

Scott: And so on a related topic, there is another question here. Can employees insist on taking holidays during Christmas period?

Seamus: Well, the Christmas period should be treated by the employer as the same any other period of holidays. There's no legal requirement to have a certain set time off during the Christmas period. Traditionally, we've had that downtime, but a lot of employers either their business operates as normal throughout the Christmas period or that they were just on to a skeleton staff.

I think key is to set your stall out as the employer at the start of the holiday year, whether that's in January or whether it's tax year, whatever it is, and be clear with your employees about what the closures are going to be or what the expectations are, give the employees an opportunity to make their applications, to have discussions internally between themselves as to who's going to work and who's not going to work.

And it affords and it gives the employees the opportunity to manage their holiday year, because it may be that they have certain events throughout the year and they know they're going to need time off and they have to, you know, schedule their holidays in accordance with what holidays they have. Now they might not always suit the business, and they have to make . . . I mean, most places will say, if you're looking for time off you have, you know, make your application for time off, maybe no less than two weeks in advance, or if it's a longer period, within three months in advance or something like that. But for me, the key thing is communication.

You need to get the position out to your employees as soon as possible and get them to come back with what it is that they're looking at and then take a reasonable position. Obviously, everybody can't have it off, and you would hope that employees will work among themselves to agree who will and who won't work. Saying that, you always get an element of the workforce who are dogmatic about the days that they want off, they see it as their right, and those employees can be very difficult to manage during that period.

Scott: They're probably difficult to manage all the time.

Seamus: I think that's right, but I think the best that the employer can do . . . now I think you do have to have some cognisance for, you know, the likes of maybe people that are carers, or if they're parents, if they're guardians of children and they require time off because their children are off, and you need to think about those legal protections that those employees have as well. But, look, you try to take a fair position with it.

Scott: Okay, thank you very much, Seamus. Thank you very much to everybody for listening in. You'll be able to listen back hopefully later on this afternoon. Keep in mind that we get these webinars transcribed, so you could go to the written answers. We also break them up. So, if you go into the Seamus says section on the website, you can have a look at those individual questions and search for those.

The next date of the webinar, we'll be doing them again next year, you can't get away from us, but instead of the first Friday, because I'm on holiday and so is everybody else, it'll be the 10th of January. So put that one in your diary. After that, it will be the first Friday of every month that we're looking to do.

So Merry Christmas everybody and Happy New Year when it comes. Goodbye from Rolanda Markey, Seamus McGranaghan, and me, I'm Scott Alexander. Happy New Year when it comes. Take care.


This article is correct at 06/12/2019

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Seamus McGranaghan
O'Reilly Stewart Solicitors

The main content of this article was provided by Seamus McGranaghan. Contact telephone number is 028 9032 1000 or email seamus.mcgranaghan@oreillystewart.com

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