We take a look at some of the most common HR myths at Christmas and provide practical guidance for employers and businesses.
1. Myth: Temporary Christmas-cover workers do not get holidays.
- Truth: All workers and employees get annual leave, including temporary, fixed-term, zero hour or casual staff. The legal minimum is 5.6 weeks inclusive of bank holidays and this is pro-rata’d for all those who do not work full time.
2. Myth: Temporary Christmas-cover workers do not have a contract if there is nothing in writing.
- Truth: A contract of employment is formed from the moment the job offer is accepted. This can be verbal, by letter, email or even text. It is important for employers to be mindful of saying something that may later change their mind on, such as a promise of a pay rise at the Christmas party – if it is promised, it is likely to form a verbal contract. A verbal contract can be binding, however employers are required by law to issue a written statement with the main terms and conditions without two months of employment.
3. HR Myths at Christmas: An end of a temporary contract is not a termination.
- Truth: Not renewing or extending a fixed term contract on its expiry still constitutes a dismissal and the employee will be due their contractual notice period. If an employee has been employed for less than 2 years, it is unlikely to be an issue as they will not have the required length of service to bring an unfair dismissal claim. However, employers need to be mindful that fixed-term workers are protected from detriment for being fixed-term from day one of their employment and such claims do not need to pass the 2 year service test.
4. Myth: All employees are legally entitled to get bank holidays off or receive pay for them.
- Truth: There is no legal right to provide special treatment on bank holidays. Many employers assume that bank holidays are an automatic leave day/s for all employees. In truth, there is no legal obligation on the employer to allow employees take bank holidays off. It is entirely up to the employer to decide whether they would like to give employees bank holidays as leave days, they are well within their rights to request employees work it.
5. Myth: All employees are entitled to enhanced pay for working Christmas day or any other bank holiday.
- Truth: This is not the case. Although it is a nice incentive to give employees extra pay for working Christmas day or any other bank holiday to ensure smooth operation of the business, there is no legal obligation on the employer to pay anything more than the normal rate of pay. If an employer decides to pay extra, it is entirely up to the employer to decide how much to pay, there is no expectation or formula that should be followed.
6. HR Myths at Christmas: “Banter” at Christmas parties is not sexual harassment.
- Truth: “Banter” is often used as an excuse for inappropriate behaviour, especially when it comes to acts which, otherwise, would be seen to be harassment, bullying or victimisation. Tribunals continually reject the notion that an employee can justify their actions as “banter” when defending a sexual harassment claim for example. Christmas parties are no different, just because it is done outside of working hours or workplace, does not mean that “banter” is then acceptable, alcohol fuelled or not. It is important to remind employees that events organised and held by employers are likely to be seen as an extension of the workplace.
7. Myth: An employer is not responsible for employee conduct during a Christmas party.
- Truth: It would be prudent for the employer to assume that they are liable for actions of their employees during work events such as Christmas parties. When looking at liability, legislation refers to the term “in the course of employment” and this will include Christmas parties.
8. Myth: Employees are entitled to be paid full pay for “snow days”.
- Truth: There is no obligation on the employer to pay full pay for “snow days” where an employee cannot attend work due to being snowed in. However, the employers should check employees’ contracts of employment as some employers do put provisions in place in event of bad weather.
9. HR Myths at Christmas: Employees on sick leave should not be invited Christmas parties.
- Truth: This is a common misconception. The employer should not presume an employee will not attend the party if they are signed off sick and employees on sick leave should be invited the same as others to avoid any possible discrimination claims.
10. Myth: Employees on maternity leave should not be invited to Christmas parties
- Truth: This is another common misconception. Some employers are reluctant to contact employees on maternity leave for the fear of being accused of disturbing their leave or even harassment. The employers should not presume that an employee who is on maternity leave would not want to attend the party, in fact, it is likely to be the opposite. Additionally, by not extending the invite to the employee, the employer is leaving itself open to claims of discrimination.
11. Myth: Employers can ask employees to “forgo” their rest breaks over the festive period because it is the employer’s busiest period.
- Truth: This is not the case and if the employees are asked to forgo their breaks, the employer could be facing a claim for breach of Health and Safety and Working Time Regulations. There is an obligation on the employer to afford the worker their right to a rest break and the employer should be actively encouraging their employees to take rest breaks. An employee working over 6 hours is entitled to a 20 minute break.
12. HR Myths at Christmas: Employers can force employees to take annual leave during the festive period.
- Truth: Most employees would be happy to take annual leave during the festive period, however this is not always the case and the employers need to give careful consideration when asking employees to take leave. The employer can request employees to take leave but an appropriate period of notice must be given which is double the period of leave required to be taken. For example, if the employer wants an employee to take 5 working days’ leave, 10 working days’ notice must be given. It is worth mentioning that the employee can refuse this and the employer needs to be mindful that their request to enforce annual leave is in no way discriminatory.