Emloyment Newsletter - Issue 17

9th December 2021

Emloyment Newsletter - Issue 17

In this edition, we will be covering:

  • Christmas parties and the emergence of the Omicron variant;
  • Christmas shutdowns and holidays; and
  • Employees that don’t return to work after Christmas.

Legal Update #1 - Christmas parties and the emergence of the Omicron variant

The new Covid-19 variant, named “Omicron” is causing concerns over Christmas parties at this time of year. Many employers have planned and booked parties for their employees to enjoy during the festive season but are now questioning whether they should proceed with these plans given their health and safety obligations to staff and the government’s announcement to move to ‘Plan B’.

The BBC has this week reported that a number or large companies are opting to hold smaller Christmas parties this year within departments, as opposed to large company wide events. Natwest, Aviva and Deloitte are hosting small gatherings and have said attendance at such events will be a “personal choice”. KPMG have emphasised that due to the new covid variant, they are stressing to employees that team gatherings will only take place if people are “comfortable” attending.

The BBC reports that about 52% of UK workplaces have decided not to host an office party this year. This is despite the fact that the government has stated publicly that there is “no need to cancel Christmas parties”, focusing instead on encouraging everyone to take up the booster vaccine when it is offered to them. Although the government has now gone further, stating people should “work from home if they can” under Plan B, there has not been any mention of prohibiting Christmas parties.

On this basis, many companies are still going ahead with their plans and hold the view that the value of getting together as a business cannot be overlooked. However, employers are keen for guidance on how to ensure they can keep everyone safe.

As you will know, employers have a duty to ensure, so far as reasonably practicable, the health, safety and welfare at work of all their employees. We recommend that employers therefore monitor the omicron situation closely and update their risk assessments as necessary.

If employers plan to proceed with Christmas parties, then they should consider measures that can be put into place to mitigate the risks of an increase in Covid-19 infections. For instance, we advise that employers follow government advice by recommending that employees do a lateral flow test before visiting crowded places, such as a Christmas party venue, even if they are fully vaccinated. Furthermore, as masks have now been made mandatory again in most public venues (except for in hospitality), employers may also consider requiring masks to be worn again in certain high-risk situations, such as queuing for a bar at a venue.

Additionally, if possible, employers should try to ensure a Christmas party venue is well ventilated by opening doors and windows to increase fresh air circulation in the room.

It is also advisable that employers continue to encourage staff to get vaccinated and to take the booster vaccine when it is offered to them. This is currently a priority for the government when it comes to tackling the Omicron variant this winter. Furthermore, it is important to note that under ‘Plan B’, the Covid Pass will become mandatory in order to enter unseated indoor events with 500 or more attendees or unseated outdoor events with 4,000 or more attendees. This may be a relevant consideration for businesses depending on the size and nature of their Christmas party.

Finally, we advise that employers emphasise to employees that attending work Christmas gatherings is optional. Employers should ensure that employees are not pressured by colleagues or management to attend if they are not comfortable.

We await more detailed guidance from the government in relation to Plan B. In the meantime, if you would like anymore advice in relation to the above, please do not hesitate to contact somebody in the Employment Team.

Legal Update #2 - Christmas shutdowns and holidays

Can you force employees to take holiday over Christmas?

Employers are entitled to require employees to take paid holiday on specific dates over the Christmas period, for instance, if the business would like to shutdown for a few days. The only legal requirement is that employers give their employees at least twice as many days’ notice as the number of days they need employees to take. For instance, if employers wish employees to take off the three days between Christmas and New Year’s Day (excluding bank holidays), they should inform employees at least six days before the first day of holiday. However, it is good practise to tell employees as far in advance as possible, so that they can make appropriate plans and arrangements.

Prior to making a change to holidays at Christmas, employers should also consider whether there has been a custom and practice in previous years which means certain arrangements are expected at this time of year and, as a result, risk them forming part of an employee’s contract of employment as an ‘implied term’. If you are considering making substantial changes, for example, to the amount of pay given on a bank holiday or to particular days normally allocated as holiday, it is advisable that you seek legal advice as you may need to follow the correct process for changing terms and conditions.

Are employees entitled to time off on bank holidays?

Employers do not have to give employees time off on bank holidays at Christmas if they are not included in employees’ annual holiday entitlements. It will be important to look at the Company’s employment contracts to assess whether holiday entitlement is expressed as including the usual bank holidays in England and Wales.

There is some debate around pay this year for bank holidays, as Christmas and Boxing Day fall on a Saturday and Sunday. In some industries, such as healthcare, where contracts provide for enhanced rates of pay on bank holidays (with a lower rate of pay on weekends) there is some contention around whether employees should also receive “bank holiday rate pay” on Christmas and Boxing Day this year, despite these falling on a Saturday and Sunday. Employers are not contractually obliged to top up this pay, but may wish to consider doing so as an act of goodwill in order to avoid tension amongst staff and to prevent any staffing issues over the Christmas weekend.  

Legal Update #3 - Employees that don’t return to work after the Christmas break

When an employee does not return to work following a period of holiday over the Christmas break, an employer should first make all reasonable efforts to contact the employee and discuss the reason for the absence. We advise that employers ensure they keep a record of all attempts to contact an employee who is on unauthorised absence. If an employee is not contactable, then an employer should try to get in touch with the employee’s emergency contacts to decipher their whereabouts.

If the employee is absent because they are unwell, then the employer should follow their sickness absence procedure and request the employee to self-certify or obtain a fit-note as appropriate.

However, if the employee is absent without explanation, the employer should write to the employee and advise them that the unauthorised absence without good reason is a disciplinary offence and may trigger a disciplinary process. All attempts to contact the employee should be cited in the letter and it is advisable to send the letter by both post and email. The employee should be required to contact the employer as soon as possible to confirm if they will return to work by a set deadline.

Under these circumstances, employers sometimes write to an employee to inform them that failing to attend work infers that they have resigned. However, employers should be aware that it would be very rare for a tribunal to accept that a resignation was implied by conduct. In most cases, an assumed resignation will be interpreted as a dismissal by a tribunal. Employers should therefore be wary that the process leading up to an ‘assumed resignation’ and the reason for the dismissal would be scrutinised by the tribunal in an unfair dismissal claim. On this basis, we advise that employers firstly go down the route of disciplinary action if an employee fails to turn up to work without good reason.

Depending on the length and circumstances surrounding the unauthorised leave, disciplinary proceedings may result in dismissal for gross misconduct.

If you experience any issues with unauthorised absences in the New Year, please do not hesitate to contact a member of the Employment Team to discuss the matter.


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