Employer’s Christmas Survival Guide

December 2018

The arrival of December sees the start of the Christmas party season with employees throughout the country embracing the festive season with good cheer and merriment, whilst trembling employers hold their collective breath until the final door closes before the Christmas break and it’s all over for another year.

The Good

Bonus: The season traditionally starts off with good intentions, with employers embracing the season of giving and rewarding employees with a Christmas Bonus. This bonus is normally seen as a gesture of goodwill and, following the increase in recent years in the non-cash benefit, employers are now able to reward staff with up to €500 tax free in Gift Cards.

However, employers should take note that, if the contract of employment is silent on the area of bonus but if it is a practice that is engaged in each year, employees may argue that they have an implied contractual entitlement to receive such a bonus and that this has arisen by way of custom and practice. To avoid such a claim employers should expressly state in their contracts of employment that any bonus payment is entirely discretionary.

Further, if a bonus payment is to be paid on the basis of overall company or team performance, care should be taken not to discriminate in making any such bonus payments. An employer may not discriminate on any of the 9 grounds as set out in the Employment Equality Acts (Gender, Civil Status, Family Status, Sexual Orientation, Religion, Age, Disability, Race & Membership of the Traveller Community). Thus, if employees are on sick leave, parental leave or maternity leave and a payment is being made based on Company performance as opposed to individual performance then to exclude these individuals from any bonus payment could be held to be discriminatory.

The Bad

Bullying & Harassment – The Christmas party is seen as another opportunity to reward employees for their hard work and build on the team spirit developed during the year. However, employers should exercise caution in organising such events in circumstances where the party, regardless of whether it is held during normal working hours or not, will be regarded as a work related social event. As such employers may be held vicariously liable for the events at the party and the actions of their employees. The onus is on the employer to ensure that there are no incidents which give rise to a claim or, in the unfortunate situation where they do arise, that they are dealt with promptly and in the proper manner. The caselaw surrounding incidents at Christmas parties highlights how, when alcohol is involved and peoples moral compass switches off, incidents of bullying and harassment can and do occur.

To try and counteract any incidents employees should be reminded, in advance, of the Company Dignity at Work Policy and Disciplinary procedures. It should be clearly set out to employees what standards of behaviour are expected at such events. It will be a defence to a claim for harassment if the employer can demonstrate that they took such steps as were reasonably practicable to prevent the incident of harassment and that they dealt with any complaints raised after the incident.

Workplace Accidents – Under the Safety Health and Welfare at Work Act an employer has a duty to provide a safe place of work and to ensure that employees are not under the influence of an intoxicant to an extent to endanger their own safety or that of others. If employees are obliged to work the day after a Christmas party care should be taken to ensure that they are fit to work and it is safe for them to do so. Employers should consider reviewing their Alcohol/Drug testing policies and contractual terms to allow them to carry out such tests. In the case of Trevor Kennedy v Veolia Transport Ireland the EAT upheld a dismissal for gross misconduct after Mr Kennedy failed an alcohol test on a Sunday morning shift.

The Ugly

Fighting: The Christmas cheer that is seen at the start of the Christmas party can quickly disappear and, as the night moves on, old rivalries and tensions can appear and may be expressed in a physical manner. If this does occur an employer will have an obligation to investigate the incident and discipline the parties depending on the findings. In the case of John Graham v Newlands Cross Hotel t/a Bewleys Hotel Dublin Airport an incident occurred on the way home from the party when Mr. Graham punched a colleague who was trying to stop an argument with another colleague, and was subsequently dismissed for his actions.

Misuse of Social Media: With employees eagerness to share the latest office gossip from the Christmas party or share the 2am Office selfie this can bring with it a host of potential problems, including bullying and harassment claims and disciplinary actions. Employers should ensure that they have a Social Media policy in place and that it addresses actions outside of working hours. The policy should explicitly state that employees have an obligation not to post or tweet any disparaging or derogatory remarks about the business or its’ employees and not to publish any photos or videos which are not in conformity with the reputation, brand or values of the Company. In the case of O’Mahony v PJF Insurances Ltd the EAT upheld a decision to dismiss an employee for posting derogatory comments about a Director on her Facebook page.

For more information, please get in touch with your usual Whitney Moore contact, Emma Richmond or any member of our Employment, Pensions and Immigration team.

 

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