As we sit in the office during the festive season, anecdotes and photographs from the Christmas party start circulating, desks that were meant to be occupied are unexpectedly empty and BBC Weather creeps up the ‘most visited’ website list. In this article we look at the potential employment implications of each of those apparently innocuous issues.
Did you hear what happened at the party?
It’s understandable that in the aftermath of the Christmas party, or even during it, tweets, social media updates, stories and photographs will start doing the rounds of what may or may not have happened under the mistletoe.
Even at a Christmas party organised off premises, it is highly likely that an employer will be found liable for the conduct of its employees. There have been a series of cases over the years involving alleged harassment at the Christmas party and tribunals have, in principle, had little difficulty in finding the employer liable. It might be too late now to give warnings to employees about your expectations of their conduct at the Christmas party but if you find a grievance on your desk, no matter how apparently ill founded, you need to take it seriously and investigate it sensitively and thoroughly. It might be possible to defuse the situation relatively easily but you should avoid making any assumptions until you have a full understanding of what has happened.
Employers are increasingly aware of the risks of social media and Christmas party photographs or videos might not be the right kind of publicity for your organisation. Hopefully your employees will be aware, either through a social media policy or specific guidance, that they should not post any updates or images that might adversely affect their employer or its reputation. However, even with the best will in the world, some employees might flout that guidance. If you do find that potentially damaging updates have been posted, check if any policy has been breached, consider if any actual damage is likely to have been done and, if so, take action under your disciplinary procedure.
Where’s…?
Working the gap between Christmas and New Year can often feel an unattractive prospect but what if the workforce you were expecting doesn’t turn up or arrives apparently unfit for work?
Contracts of employment and handbooks should include terms requiring employees to notify absence. A failure to comply with that is likely to mean the absence is unauthorised, that disciplinary action can be taken and, potentially, that pay can be docked. Even if absence is notified, if there is reason to believe that the non-attendance is due to over-consumption of alcohol, there might be grounds to withhold pay but if you as the employer have provided the opportunity for the over-consumption, that might be a difficult argument to run. In any event, withholding pay is always a sensitive matter and you need to ensure you have a contractual right to do so and notify the deduction to any employees concerned.
Employees turning up for work apparently still under the influence of alcohol (or drugs) need to be dealt with differently. Employers are obliged to provide a safe place of work and if there is a concern that an employee might endanger their own health and safety or that of another employee, action should be taken. In the absence of an express contractual provision or express consent, an employer should be cautious about testing for alcohol but if there is other evidence to support a suspicion of intoxication, there may still be grounds for taking action in accordance with your disciplinary policy.
Let It Snow
An employee who fails to attend work due to adverse weather has no statutory right to be paid. You will need to decide how you are going to deal with any non-attendance in such situations. You might want to consider whether employees can be required to work remotely pending their return to work. If that isn’t feasible, are employees to be permitted to take the day(s) from their annual leave entitlement or are they going to be required to make up the time at a later date? A case by case approach is likely to be best in such situations but whatever decision you make, you need to ensure that you are consistent and non-discriminatory across your workforce.
Ellie Hibberd is an experienced solicitor on the employment team in Exeter. If you would like to contact the team, please call 01392 210700 or email employment@stephens-scown.co.uk.