Snow, Parties and Bonuses: It’s Christmas in HR

Christmas is fast approaching and with it comes a flood of countdowns, charts and recaps of the year behind us.  I’m not one to shy away from clichés, so here is my list of HR issues to watch out for this month.

1.  The Office Party   A combination of alcohol and festive spirit could lead your staff to behave differently this month and this could mean trouble for you. If behaviour crosses a line many employers will want to avoid disciplining their workers, for fear of being labelled a Scrooge.  However it helps to have clear disciplinary and grievance policies in place should they be needed, or an employee wants to complain about a colleague.

Juggling the HR issues at Christmas

There is some interesting case law on when an employer could be deemed liable for the discriminatory acts of its employees (including any unwelcome advances after too many sherries).  The business could be liable if the act was committed “in the course of employment”.  The harassment of an employee by a colleague in the workplace will almost certainly be covered.   However, the line becomes blurred with conduct off the premises and out of normal working hours, particularly at social events.  An employer might have a defence if it can show that it took “all reasonable steps” to prevent the incident from happening.  These could include:

• Implementing an equal opportunities policy and an anti-harassment and bullying policy, and reviewing those policies every now and then.
• Making all employees aware of the policies and their implications.
• Training managers and supervisors in equal opportunities and harassment issues.
• Taking steps to deal effectively with complaints, including taking appropriate disciplinary action.

2.  Help, I’m Snowed In!   Some workers will be hoping to wake up to a blanket of snow blocking their way to work.  Weather like this can be rare but in recent years it has caused some debate and confusion.  Uncertainty can be avoided by having a clear policy on what you expect from your workforce when it is difficult for them to report for work. For example, you should spell out that all efforts should be made to attend work and disciplinary action could follow if no reasonable excuse for non-attendance is given.

 No work today?

The normal position is that unless the contract provides otherwise, employees who are unable to turn up to work (even for reasons outside their control) are not entitled to be paid.  There is some debate on this point so it makes sense to spell out the position in your staff handbook or contracts of employment.   Bear in mind that if schools are closed some employees might need to take time off to make arrangements for their children.  In this scenario, employees have the statutory right to reasonable (unpaid) time off to care for their dependants.  They are also protected from dismissal or suffering detriment as a consequence of exercising that right – so it makes sense to get the full facts before disciplining an absent employee.   3.  Bonuses   Although the issue is not confined to this time of year, some employees may expect a bonus this Christmas.   Many employers will use their discretion to make a bonus payment as a gesture of goodwill.  Therefore the staff should have no contractual right to the payment, giving them little room to complain if one is not forthcoming.  But even if there is nothing in writing they could argue that they have an implied contractual right by reason of custom and practice, if bonuses have been paid on a regular basis.   Further difficulties can arise where the employer has provided the incentive of a bonus scheme.  The first question is whether the scheme is contractual or non-contractual. This should be a clear answer but the courts have become increasingly willing to find that bonus schemes expressed to be non-contractual or discretionary give rise to contractual rights.   The subject of bonuses is complicated and it is important to strike the balance between promoting loyalty among your staff and placing yourself under a heavy financial burden.  It is important to take advice and ensure that bonus provisions are tailored to your needs. However a well-drafted non-contractual bonus clause or policy should make it clear that:

• The payment, timing and conditions of any bonus shall be at the absolute discretion of the employer.
• The making of a payment in one particular year shall not oblige the employer to make any subsequent payments.
• The employee shall have no right to a bonus if he has not been employed for the entire year, his employment has terminated or he has been placed under notice of termination.
• Any bonus shall not be pensionable.

If you would like advice on any of the issues raised above, or indeed any other employment law matters, then please contact one of our employment solicitors who are specialists in this area.  They can be contacted on 020 7234 0200 or contact@waterfront.law.