If you act like a Turkey at the Christmas Party, you could get stuffed!

The work Christmas party is often eagerly anticipated and a chance for employees to let their hair down. However all too often, the combination of a relaxed atmosphere and too much alcohol brings out the worst in employees, leading to problems within the workplace.

It is important to remember that any work party or gathering can be argued to have effectively taken place at work. An employer may be vicariously liable for wrongdoing by an employee if that wrongdoing is “closely connected” with the employment. Employees can therefore argue that any unfair treatment that they have received at a Christmas party took place  within the workplace, opening employers up to liability and subjecting employees to disciplinary action for the same reasons. It is therefore important for employers to prepare for the worst, to hopefully avoid issues arising.

In a case heard in October 2018, by the Court of Appeal reiterated this view, in deciding that a drunken attack by the managing director of a small business on an employee was “in the course of employment”. In the case of Bellman v Northampton Recruitment Limited, following a heated discussion about work-related issues, Mr Bellman was punched twice by the Company’s owner and Managing Director, fracturing his skull and suffering severe brain damage as a result. The key to this case was the misuse of the MD’s authority and position; the Court made clear that this case does not mean that employers become insurers for violent or other acts by their employees at the Christmas Party, but that they may do for the acts of the most senior of employees.

Employers should have policies in place that specifically deal with potential problem areas. The standard of behaviour should be clearly outlined within the policy together with the potential consequences of infringing these expectations. Reminding employees of these policies in advance of the staff party may prevent infringing behaviour from occurring in the first instance, and will assist the employer in disciplining fairly. The standard of behaviour expected should be communicated to employees and any breaches should be actioned reasonably, to avoid the following issues:

• Fighting:  In Gimson v Display By Design Ltd, the employer was found to have fairly dismissed an employee for a brawl after the end of a Christmas party.

• Drink driving after the office party: Other than giving the incredibly simple advice of ‘don’t do it’, ensure that employees are advised that; 1) they must arrange alternative transportation home if they are intending on drinking, and 2) if anyone drives home after they are reasonably believed to be in no fit state to do so, that they will be subjected to disciplinary action which could result in their dismissal.

• Absenteeism:  If you are having the work party in the middle of the week, there will be a risk that employees will be absent the following day. Prior to the party, employers should make it clear whether an employee’s absence the next day will be treated as a disciplinary issue. An employer can make deductions from employees’ pay if they turn up for work late the morning after the company Christmas party, as long as the right to make deductions from wages for unauthorised absence is reserved in the employment contract.

Clearly, the above is only a short list of the things that can go wrong. It is important to strike the correct balance between ensuring that employees can let their hair down but also comply with their employer’s expected standards of behaviour. Advising employees of clear and consistent policies should avoid a number of issues from arising in the first place.

If you are an employer or employee seeking advice on any matter relating to employment law,  please contact Ben Stanton on 01908 660966 / 01604 828282 or by emailing ben.stanton@franklins-sols.co.uk.

Photo by Sharon McCutcheon from Pexels

The Employment Appeal Tribunal has found that an employee’s “gender-critical belief”, namely a belief that people cannot change their biological sex, represent a philosophical belief that is capable of protection under the Equality Act 2010.

The Case 

Ms Forstater was dismissed after posting a series of tweets questioning government plans to let people declare their own gender. The original tribunal found that Ms Forstater’s views were, “not worthy of respect in a democratic society”, and that her employer was justified in dismissing her. At appeal, whilst Ms Forstater’s words were found to be offensive, the Honourable Mr Justice Choudhury found that this did not stop Ms Forstater from being protected from expressing those beliefs as they “did not seek to destroy the rights of trans persons”.

This case involved two relevant sections of the Equality Act 2010:

• Section 7 of the Equality Act 2010 confirms that gender reassignment is a protected characteristic, giving protection to people who have proposed to undergo, are undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex. It is therefore unlawful to treat someone less favourably because of their gender reassignment.
• Ms Forstater was relying upon section 10(2) of the Equality Act 2010, confirming that a “philosophical belief” is also a protected characteristic.

The Decision

The decision does not mean that Ms Forstater is/was free to unlawfully harass or discriminate against trans people, but that her rights and protection under the Equality Act 2010 should also have been considered before taking any action to dismiss her.

This case represents another example of a Tribunal trying to balance the rights of employees who have the freedom to express their genuinely-held beliefs which may be offensive to some employees, versus those offended employees who have a right not to be treated less favourably because of their protected characteristics.  

Read the full story by the BBC here. 

If you need advice because you have been unfairly treated due to your own protected characteristics, or if you are an employer with employee issues, please contact Ben Stanton by email at ben.stanton@franklins-sols.co.uk or call our Employment Team on 01908 660966.

Employees are protected from being unfairly treated or dismissed as a result of them raising reasonable issues regarding the safety of the workplace. The aim behind this protection is to encourage employees to be able to raise any relevant health and safety concerns, without fear of being dismissed just for raising these concerns. This might happen in circumstances where an employer considers that an employee is being ‘difficult’, or raising too many issues. This protection has been particularly relevant during the current Pandemic, as employers have an obligation to take reasonable steps to make sure the working environment is ‘COVID secure’ and safe in line with the Government’s guidance. Many employees who refused to attend their workplaces and were dismissed because of that refusal, have subsequently brought claims against their employer under this legislation.

From 31^st May 2021, the Government intends to amend Section 44 of the Employment Rights Act 1996 to extend protection from Health and Safety detriment to workers.  A worker is someone who provides services to a person or business, but the person or business does not have to offer them work and they do not have to accept it – they only work when they want to.

Currently workers do not have the same rights as employees to receive protection from complaining about unsafe working environments, but The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 will grant workers the same rights.

If you are affected by any of the issues in this article, or if you would like advice on any other employment issue, please contact Ben Stanton on 01908 660966 / 01604 828282 or email ben.stanton@franklins-sols.co.uk.

Many employers have now taken advantage of the Coronavirus Job Retention Scheme, placing employees on furlough leave to allow them to be eligible to recover a grant of up to £2,500.00 gross per month (or 80% of the employee’s wages, whichever is lower).

The guidance on the scheme has been amended twice since it was first announced, giving additional clarity to what was a hastily put together emergency scheme. Our employment solicitor, Ben Stanton, has created two videos to advise on the terms of the scheme. Click on dates below and you’ll be redirected to the respective videos:

• 20th March 2020
• 1st April 2020

As these videos were created as soon as any information was released, some of the information has since been clarified by the Government’s updated guidance of Saturday 4^th April, although the terms of the scheme are still as outlined in the video.

Disappointingly, the Government has still failed to clarify whether an employee can take annual leave during a period of furlough leave. However, in its stead, ACAS has released its own guidance to confirm that:

“If an employee is ‘furloughed’ (temporarily sent home because there’s no work), they can still request and take their holiday in the usual way. This includes taking bank holidays.”

This confirms that if an employee wishes to take annual leave during furlough leave (or if an employer wants them to take annual leave), the employee can take their annual leave and be paid in accordance with their contractual entitlement, whilst remaining on furlough leave.

As an alternative, the Government announced The Working Time (Coronavirus) (Amendment) Regulations 2020, a piece of emergency legislation which permits an employee to carry over 4 weeks’ untaken leave where it was not reasonably practicable to take it in the leave year “as a result of the effects of the coronavirus (including on the worker, the employer or the wider economy or society)”. Holiday entitlement can now be staggered over the next two years, rather than employees having to take their holiday entitlement when they return to work.

If you would like assistance in placing your employees on furlough leave, or if you are an employee who has been placed on furlough leave and would like to discuss your rights, please contact Ben Stanton on 01908 660966 / 01604 828282 or by emailing ben.stanton@franklins-sols.co.uk.

On 20^th March 2020, the Chancellor of the Exchequer, Rishi Sunak, introduced furlough leave. Whilst placing an employee on furlough leave is commonly-used in the United States, furlough leave is an entirely new UK legal concept.

Currently, if an employer closes its workplace or does not have any work to provide its employees and wanted to send them home, the employer is still obliged to pay employees their normal full pay if it had no work to provide to them. The exception to this is if the employer already has a contractual right to ‘lay off’ an employee, by sending them home without work; such a clause is commonplace in the building and aviation industry, but less so in others.

The Coronavirus Job Retention Scheme (otherwise known as the introduction of ‘furlough leave’) now means that whilst employers would still have to pay 100% of their employees’ wages if they asked them to remain absent from work, they could claim back 80% as a grant from HMRC, up to a maximum of £2,500.00 per month. On top of the 80%/£2,500.00, HMRC will also reimburse the employer the equivalent Employer’s National Insurance Contributions, together with the minimum employer auto-enrolment pension contribution. The employer should pay the employee 80% of the wages that they were paid on or before 19^th March 2020.

Whilst furlough leave was announced on 20^th March 2020, we had to wait until the evening of 26^th March 2020 to receive further details of the scheme. However, now that we have the details, we are able to offer our clients clear and detailed advice as to how to comply with this scheme and how to place employees on furlough leave correctly, in order to allow employers to claim back the furlough leave grant from HMRC.

If you would like assistance in placing your employees on furlough leave, or if you are an employee who has been placed on furlough leave and would like to discuss your rights, please contact Ben Stanton on 01908 660966/ 01604 828282 or by emailing ben.stanton@franklins-sols.co.uk.