Legal

How to navigate festive workplace issues

27 Nov 2019 By Jonathan Rennie

With the holiday season fast approaching, Jonathan Rennie provides insight on how best to handle the legal pitfalls it could bring, as well as the first winter election for nearly a century

Recently, a German court controversially classed a hangover as an ‘illness’, grabbing plenty of attention in the British press. But employers should not be overly concerned, as the case related to advertising regulations in food supplements as opposed to employment law. 

It did, however, raise the question of how employers in the UK should deal with staff who attend work suffering the after-effects of a few too many mulled wines at the office party, and whether such behaviour would amount to misconduct under a typical employment policy. While the current legal position in the UK doesn’t classify a hangover as an illness, it is important that employers check and renew contracts and policies relating to alcohol at work and to set clear expectations of behaviour, especially in party season. 

Employers may wish to take steps to ensure that the work Christmas party doesn’t end up producing more than just a sore head the next morning. The recent case of Shelbourne v Cancer Research UK provides some reassurance for employers about their liability for accidents at work social events, but it also demonstrates the potential for serious consequences when a company-run social gets out of hand. 

The court did not extend employer liability to cover the actions of a drunk attendee of a work Christmas party that caused an injury; however, it would be prudent for employers to ensure they have completed an appropriate risk assessment before a party, and perhaps consider the wisdom of providing free-flowing alcohol. 

In a post-GDPR world, employers can be fearful about collecting and processing personal data that isn’t strictly necessary for the employment relationship, which can lead to caution around photos taken at Christmas events and parties. There is often a perception that the GDPR requires written consent to be obtained from employees before photos of them can be taken. However, while employees may not always want their Christmas party antics permanently recorded and made available for all to see, as a general rule you do not need to approach every attendee to obtain a written consent to take photographs of them. If required, a simple process can be implemented, allowing employees to ask photographers directly not to take their photo, and it might be wise to revisit and re-circulate social media and device usage policies to all employees.

Commonplace issues such as conflicting holiday requests can often be a source of office tensions, but it comes as a surprise to many that, if this is handled incorrectly, employers could leave themselves open to discrimination accusations. When faced with conflicting holiday requests, transparency is key, and clear justification for any refusal should be provided. Employers should always be mindful of possible direct or indirect discrimination that could arise as a result of preferring one employee’s request over another. 

Throwing a winter election into the mix, employers should be mindful of how any requests by trade union representatives may conflict with other holiday requests. It is important to note that trade union representatives cannot be unreasonably refused leave in election periods, but worth remembering that you have no legal obligation to give employees time off to vote.

Having the right policies in place, and clearly communicating those policies to employees, will likely allow for a worry-free festive season for all. 

Jonathan Rennie is an employment partner at TLT

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