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An Employer’s Guide to Surviving December

1.    You can celebrate Christmas without offending other religions

So says the Equality & Human Rights Commission which encourages employers to take a common sense approach. There is no need to take disproportionate measures such as replacing the word “Christmas” or banning carol singing. Click here for the EHRC’s on line Guidance for Employers on Religion and Belief Discrimination which went live on 2 December 2016. 

2.    You can shut down your business over the Christmas break

There is no rule to prevent employers requiring staff to take some of their statutory or contractual holiday entitlement during a period of business shut down. Simply make that clear in the contracts of employment. 

3.    Working from home over the break

Consider data protection issues in advance if you are going to let staff work from home. Providing remote access to your company email is going to be far safer that allowing staff to forward your business emails to their personal addresses. A Data Protection and IT Policy will help here. 

4.    Corporate gift giving and receiving  

Take care that gifts given or received are not too lavish or the business could fall foul of the Bribery Act 2010. A bribe is defined as a “financial or other advantage" offered, promised or given to induce a person to perform a relevant function or activity improperly, or to reward them for doing so.
This broad-ranging description covers many types of possible advantage including those typically offered at this time of year such as gifts, hospitality and entertainment. It is an offence for a commercial organisation to fail to prevent bribery by an “associated person”; this definition covers those who perform services for and on behalf of the employer. It covers agents, consultants and volunteers as well as employees. Consequences of a breach of the Bribery Act are severe. Individuals can face up to ten years in prison and commercial organisations can face unlimited fines and be prevented from tending for public contracts. 

Employers have a defence if they can show that they had adequate procedures in place to prevent bribery. Helpfully there is no definition or specific explanation of what an "adequate procedure” might be. The Ministry of Justice has produced some guidance which can be found here:
We recommend having a clear, understandable Anti-Corruption and Bribery policy, staff training, risk assessments and management commitment to anti-bribery. It’s also good practice to require all staff who receives a gift worth, say, more than £50 to £75 or more to record it in a Register of Gifts.

5.    Those ‘Duvet Days’  

It’s snowing and your staff are struggling to get to work. What’s your policy on pay if they don’t make it in, working from home, making up hours and keeping in contact? Are you consistent from year to year and across staff? Do you have an adverse weather policy?  Remember, employees have a right to take a reasonable amount of time off because of unexpected disruption to a dependent’s care arrangements, for example if the school or nursery closes. There is no statutory right to be paid for this time off but employers must not subject the employee to a detriment for exercising this right.  Click here for more detailed information on some of these issues. 

6.    Christmas Bonuses 

No employer wants to create bad feeling by disappointing staff with a Christmas bonus less generous than the year before. A safer strategy might be to keep Christmas bonuses relatively modest and save the more serious bonus schemes aimed at rewarding performance for another time of year. Remember, discretionary bonuses can become a contractual right through regular custom and practice.  Take care too not to breach the implied terms of mutual trust and confidence which requires employers to treat all employees in an even handed way and not exercise their discretion to award or refuse to award bonuses in an arbitrary or irrational manner.  

7.    High spirits or bringing your business into disrepute?      

Nobody wants to be a kill joy but it’s a good idea to remind staff who are out socialising with clients or suppliers that they are ambassadors for your business and they shouldn’t make a turkey of themselves. Bringing the business into disrepute is a potentially fair reason to discipline or dismiss an employee. 

8.    No offence meant, it was just harmless banter... 

Notice how we’ve left the trickiest topic till last. As Christmas drinks flow, tongues loosen and one of your employees believes he or she is satirical wit of the year. When does a comment that relates to a colleague’s “protected characteristic” cross the line from harmless banter to harassment under S26 of the Equality Act 2010? It can be a mine field as the case law on this issue shows.  

The definition of harassment is unwanted conduct, related to a protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading or offensive environment for that individual. (The relevant protected characteristics are age, disability, gender reassignment, race, religion and belief, sex, and sexual orientation).  

A one off incident can amount to harassment and the individual need not have made the harasser aware that the conduct was unwanted. This conduct can include a wide range of behaviour, including spoken or written words or abuse, imagery, graffiti, physical gestures, facial expressions, mimicry, jokes and pranks.  Putting up with banter, or even joining with it, does not mean that the conduct was unwanted. 
Tribunals will also consider the purpose or the effect of the harassment on the individual. This means that even if the harasser did not intend to upset the individual, the behaviour could still amount to harassment. Where the harassment is based only on the ‘effect’ (i.e. the harasser did not intend to upset) the tribunal will consider whether it is reasonable for the complainant to regard themselves as having been harassed. This additional test is used by tribunals to discourage (in the words of the Employment Appeal Tribunal) “a culture of hyper-sensitivity or the imposition of legal liability in respect of every unfortunate phrase."

Employers are liable for the unlawful acts of harassment committed by their employees but they do have a defence if they “take all reasonable steps” to prevent the harassment happening in the first place. Like the Bribery Act above, we recommend a clear understandable Anti-Harassment and Bullying Policy, staff training and management commitment to promoting equal opportunities. 

If you would like further advice on any of these issues, or would like a review of your employment contracts and policies please contact our employment law solicitor Deborah Scales on 07714 092 800 or 

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