Although the festive period is generally a joyous time, it can cause a number of HR issues due to a number of factors, including employee exhaustion and stress towards the end of the year, staffing issues in respect of cover and the expectation of Christmas bonuses. In this blog our employment team have attempted to provide practical advice as to some of the main issues that arise this time of year.
Christmas Bonus- are employees entitled to receive one?
In many industries, Christmas bonuses are commonplace and expected by employees; however, changing finances of the company can place employers in a difficult position.
The first thing to consider is whether the employee has a contractual right to receive a Christmas bonus, either through a specific clause in their contract, or implied through custom and practice (i.e. that employees have traditionally received one). If this is the case, without agreement by the employee, it may be that to not pay a bonus gives rise to a breach of contract or associated claim made against the company.
If there is a contractual right for employees to receive a bonus, but the finances of the company are such that it is not going to be possible, it may be possible in some circumstances to agree this with the employees involved but we strongly suggest you take legal advice before doing so as to avoid an unilateral change.
If not, and any bonus is purely discretionary, just remember that employers must not use their discretion in an irrational or perverse way (e.g. paying a large bonus to one member of staff whilst not paying another that does a similar role). If you are unsure, please seek legal advice we would be happy to assist.
Annual leave and staffing issues- how can we ensure that everyone gets a break over Christmas, whilst maintaining sufficient cover?
Firstly, unless there is a specific agreement to the contrary, generally, employers can refuse an annual leave request if there are valid business reasons for doing so, including ensuring that there is sufficient cover to meet customer demands. As always, an employer is expected to act even-handedly and also to ensure that the employee is not prevented from taking the leave to which they are entitled in that holiday year.
In most businesses, the Christmas period is split between members of the team or department in which that employee works and, thankfully, in most cases with conscientious employees this works so as to ensure that everyone gets some time off. Special consideration may need to be given to those, for example, with religious beliefs or dependents to ensure any such policy is not indirectly discriminatory.
It is also worth noting that if one employee is granted a long period of leave over the Christmas period, which means that another employee is unable to take any leave (or very little) this may breach the implied duty of mutual trust and confidence that exists between employees and employers.
How should I deal with an employee receiving a Christmas gift from a client or customer?
Although the giving and receiving of Christmas gifts are customary at this time of year, and are ordinarily a great morale boost for employees and are undoubtedly gratefully received, companies need to ensure that they do not fall foul of stringent anti-bribery legislation.
Very briefly, a company may be guilty of an offence if a person associated with them bribes another person, intending to obtain or retain a business advantage.
A company may have a defence if it can show it had an adequate procedure designed to prevent bribery. An anti-bribery policy may assist in preventing bribery as well as meeting the "adequate procedures defence". Any such policy would ordinarily include provisions as to the receipt of gifts, with an upper limit and clear reporting lines if an employee is concerned. It is important that any such policy is tailored toward any specific risks the company faces which would depend on the industry and nature of what they do.
Finally, what should you do if you have concerns regarding an employee's wellbeing over the festive period?
Though ordinarily a happy period, for some employee's, the Christmas period may exacerbate feelings of stress, anxiety or depression. Although there is no blanket rule as to how to respond and assist employees in such situations, there are some key pointers which may assist the company in meeting its obligations (for example to provide safe place of work and a safe system of working).
Produce, implement and communicate a mental health at work plan. This should promote good mental health for all employees and outline the support available for those who may need it.
Encourage open conversations about mental health and the support available when employees are struggling.
Monitor employee working hours and provide employees with good working conditions and ensure they have a healthy work life balance. Of course additional working hours may be necessary for a particular project and cannot be helped however communication is key to a happy workforce and knowing when certain employees may need additional support.
Provide support services such as occupational health or confidential counselling.
It is also worth noting that a person who is suffering from stress or mental ill health may be "disabled" for the purposes of the Equality Act 2010. By taking steps to manage stress and mental wellbeing at work, an employer may be able to avoid an employee developing a mental impairment or, where an employee has or develops an impairment, the employer can ensure it meets its obligations (for example, by making reasonable adjustments).
The information contained in this article is for information purposes only and is not intended to constitute legal advice. For advice on HR issues during the festive period or generally, contact our employment & HR team at firstname.lastname@example.org or call us on 029 2009 5500.