Avoiding Christmas calamities!
As hotels, restaurants and other retailers gear up for Christmas – what employment issues should be borne in mind?
An agency might be your first port of call for additional staff. Remember that agency workers now acquire the following rights from the first day of working for you:
- to be told of relevant vacancies in the your business (e.g. placing notices on a public noticeboard, the intranet, newsletter, round-robin email)
- to be treated no less favourably than a comparable worker in relation to ‘collective facilities and amenities’ (e.g. access to staff canteens and other staff facilities
Some businesses prefer to hire temporary staff directly on a short-term basis. Remember to provide these staff members with contracts setting out when their employment will end.
Alternatively, you may want to use ‘zero hours’ contracts to engage staff on an ‘as and when basis’. Bear in mind that courts have viewed these as employment contracts, with the associated employment rights. Helpfully, the minimum service requirement to bring an unfair dismissal claim is now two years, so short term staff can only bring limited claims such as whistleblowing or discrimination.
Pay, bonuses and holidays
Hotel and leisure businesses often need their staff to work over the Christmas bank holidays. We recommend that you clearly state what the pay rates for working on these days will be. Be aware that if, for example, you have routinely paid employees double salary for working on Christmas Day for the last few years, then employees will have a reasonable expectation that you will do so again and may argue that it has been incorporated into their employment contract by custom and practice.
Similarly, businesses may choose to give employees a discretionary Christmas bonus. When deciding how much to give to whom, make sure that the discretion is exercised honestly and in good faith. If bonuses are awarded arbitrarily or unreasonably, then an employee may allege that he or she has been treated differently on discriminatory grounds, or simply may resign and bring a claim alleging that the unreasonable behaviour undermines the trust and confidence that they should have in their employer.
In Neal v Freightliner  the court confirmed that holiday pay should be calculated with reference to both basic pay and any other pay “intrinsically linked” to the work, which may include overtime. This means that holiday pay will not be calculated just by reference to an employee’s basic hours, but will have to take additional hours worked as overtime into consideration as well.
The latest opinion from the advisor to the European Court of Justice in another case also indicates that in the future, businesses may need to take commission payments into consideration when calculating holiday pay.
Christmas parties can be a huge amount of fun but can throw up some management issues. An office party is still a work-related activity and employers can be liable for their employees’ actions. It is worth making staff aware that whilst they can let their hair down, they should keep behaviour within acceptable boundaries: parties that slide into fighting and discriminatory abuse can cause headaches lasting well beyond the next day!
Should you need to take disciplinary action against a staff member because of his or her behaviour at an office party, make sure you wait until the party is over and to avoid any allegations of unfairness, make sure that staff are treated consistently.
If you would like to discuss any of these issues further, please do contact
T. 0207 227 7410
We wish you all the best for the festive season and a Happy New Year!
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.