From Secret Santa to office parties, 11 ways to avoid getting a lawsuit for Christmas

‘Tis the season to be prudent.

By Ian O'Herlihy Partner, Mason Hayes & Curran

WITH PREPARATIONS IN full swing for the festive season, here are some workplace issues typically faced by employers at this time of year – and some practical tips for dealing with them successfully.

1. Christmas parties and liability

An employer is liable for the conduct of its employees at a Christmas party organised by the employer.

Previously, the Equality Tribunal and the Labour Court have had little difficulty in establishing employer liability where a person is harassed at a work-related event, such as a Christmas party. There is no reason why the Workplace Relations Commission would not take the same approach.

Tip: Employers should ensure that employees understand the standard of conduct expected of them at a Christmas party and that they are expected to observe the provisions of the dignity at work and bullying and harassment policies at work-related events.

Employers might consider amending such policies, or introducing them if such policies are not in existence, to include references to work-related social events.

2. Christmas promises

The UK Employment Appeals Tribunal (EAT) in Judge v Crown Leisure held that a promise made by a manager at a company Christmas party was not contractually enforceable because there was no intent for it to be so.

Judge alleged that, at the company’s Christmas party, his manager promised his salary would be doubled over the following two-year period. He subsequently resigned, claiming constructive dismissal on the grounds that his manager had broken this promise.

The EAT held that the context of the conversation (the company Christmas party) indicated that Judge’s manager did not intend to enter into any legally binding contractual commitment, rather it was more a statement of intent.

This case should not be interpreted as meaning that things said at the Christmas party cannot be intended to create legally binding commitments with commentators noting that the company was ‘lucky’ and that ‘the case could easily have gone the other way’

Tip: Employers should advise managers not to discuss career potential or remuneration with employees at the company Christmas party, as words of encouragement and good intentions can end up being misinterpreted.

3. The morning after the night before

Employers are obliged under the workplace health and safety acts to provide, as far as is practicable, a safe place of work. Employers should be mindful of these obligations to employees who are required to work the day after the Christmas party, in particular employees who drive or operate machinery.

An employee should not be at work under the influence of any drugs or alcohol if that would endanger their own or another person’s health and safety at work.

Employers should be cautious about testing employees for drugs and alcohol unless similar testing is provided for in the employee’s contract of employment, there is a clear policy for this testing or the employee agrees to this testing.

Tip: Employers should tell all employees of their expectations that employees reporting for work the day after the Christmas party are not to be under the influence of alcohol or drugs.

If the employer has the right to do so, consider undertaking tests for drugs and alcohol for employees who are rostered to work following the Christmas party and, if an employee fails this test, consider taking action in accordance with the employer’s disciplinary policy.

4. You have been tagged

It might be said that there is no such thing as bad publicity, but the last thing an employer needs is for images or footage from its Christmas party to go viral on social media for all the wrong reasons.

Tip: Employers should ensure that employees are aware, either through the company social media policy or specific guidelines circulated in advance of the Christmas party, that they should not place material on social media sites which would adversely affect the reputation of the employer.

Employees should also be made aware that this conduct may result in the employee being disciplined in accordance with the employer’s disciplinary policy.

5. Secret Santa

While ‘Secret Santa’ in the office is often seen as a bit of fun, the anonymity involved can sometimes result in inappropriate, and even offensive, gifts being exchanged between colleagues.

In a 2013 Circuit Court case, a present of red Santa boxer shorts given by a female garda to her male colleague as part of Secret Santa in their workplace was referenced.

The scenario was raised as evidence that the female colleague may have been complicit in the ‘banter’ in the office in circumstances where she alleged that the male garda had sexually harassed and assaulted her.

Tip: Employers should ensure that employees are aware that Secret Santa falls under dignity at work and bullying and harassment policies, and that employees are encouraged to consider in advance of selecting a gift whether their choice of gift might cause offence or be construed as bullying or harassment.

6. Public holidays

There are three public holidays over the Christmas period: Christmas Day, St Stephen’s Day and New Year’s Day. Employees who qualify for public holiday benefit will be entitled to one of the following:

  • a paid day off on the public holiday
  • an additional day of annual leave
  • an additional day’s pay
  • a paid day off within a month of the public holiday

Most employees are entitled to paid leave on public holidays, although an exception applies to part-time staff who have not worked for their employer for at least 40 hours in total in the five weeks before the public holiday.

An employee is entitled to ask their employer at least 21 days before a public holiday, which of the alternatives, above, will apply. If an employer fails to respond to the employee at least 14 days before the public holiday, the employee will be entitled to take the actual public holiday as a paid day off.

Tip: Employers are advised to draw up rosters and confirm with employees the days they will be required to work over the holiday period in early December to avoid any confusion or upset amongst staff and to ensure compliance with the relevant act.

7. Holiday discrimination

In determining which employees are required to work over the Christmas period, employers should be mindful that under the Employment Equality Acts, discrimination based on any one of nine protected grounds is unlawful.

These grounds are gender, civil status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community.

Tip: In ensuring that they have adequate cover over the Christmas period, employers should select employees to work during this period based on the business needs of the employer and should be in a position to objectively justify their selection of employees.

Employers should be mindful not to target employees on the basis that, for example, the employee does not have children or does not celebrate Christmas.

8. Bonus entitlement

It is common practice at this time of the year for employers to give employees Christmas bonuses as a gesture of goodwill.

If an employee’s contract of employment is silent in relation to the payment of a Christmas bonus, an employee may argue that such a bonus is an implied term of their employment contract where there has been a custom and practice of paying the bonus on a yearly basis over a number of years.

In a 2009 Labour Court decision, it was held that an employer could not stop paying its employees a Christmas bonus as it was “clear from the wording of the company/union agreement, and the previous practice within this employment, that the bonus is an integral part of the conditions of employment of the workers to whom it relates”.

Tip: An employer should ensure that its employees’ contracts of employment expressly state that Christmas bonuses are payable wholly at the discretion of the employer and are not contractual entitlements. However, employers should bear in mind that the less they use such discretion, the more difficult it is to rely on it.

9. Bonus discrimination

In calculating Christmas bonuses, an employer should ensure that, if a bonus is based on company or team performance throughout the year, employees who have been on leave of absence from the workplace during the year as a result of, for example, maternity or medical reasons, are not discriminated against or treated less favourably than employees who have not been absent on similar leave.

Employers should note that employees on carer’s, parental, maternity, adoptive and sick leave are protected against discrimination.

Tip: When paying a Christmas bonus to employees, employers should be mindful not to discriminate against employees on any of the nine protected grounds.

10. Snow day

If an employee fails to attend work due to snow-related travel disruption, they have no statutory right to be paid.

If an employee is stranded abroad for personal reasons, it may be a possibility to allow employees to take the days from their paid annual leave entitlement. Alternatively, employers could agree that employees make up the time at a later date.

If, however, the employee is away on a business trip and cannot get back home, the situation may be somewhat different. It could be argued that this time is analogous to an employee being ‘on call’ and at the disposal of the employer – and that they should be paid.

In any event, if an employee can still carry out work remotely, it would be unreasonable for an employer not to pay an employee who was away on company business and who is still working.

Tip: Where an employee is unable to attend work due to travel disruption, the employee is generally not entitled to be paid. An employer should look at each situation on a case-by-case basis and should consider the possibility of an employee working remotely pending the employee’s return to work.

11. Deck the halls

While employers’ health and safety obligations should not be used as an excuse to dampen the festive spirit in the workplace, employers should take common sense precautions when it comes to decorating the office for Christmas.

Tip: Employers should take precautions such as providing staff with suitable step ladders to put up decorations, making sure that Christmas trees are not blocking fire escape routes or exits, and checking any novelty lighting for defects.

The content of this article is provided for information purposes only and does not constitute legal or other advice. 

Ian O’Herlihy is head of the employment law and benefits team at Mason Hayes & Curran. This article was co-authored by Melanie Crowley.

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