Don't miss a trick with this Halloween advice
How to avoid a costly Halloween, a Christmas giveaway, news items and a few Q&As in today's newsletter
Don’t let Halloween turn into a nightmare!
I don’t want to be a killjoy but - whilst it is great to have a bit of fun at work by dressing up in spooky costumes, employers should be minded that staff don’t overstep the mark by wearing costumes that others may find offensive.
A number of costumes which were acceptable just a few years ago are clearly no longer appropriate. Staff should steer clear of culturural stereotyping and worse still sexualising cultural dress.
Furthermore, fat shaming, taking a pop at gender identity and black facing are definitely out. Some people may just say it’s harmless fun but it has a real impact on those groups or cultures who are the objectified in this way. Not only that, allowing staff to wear offensive costumes could prove a costly exercise as an employer could find themselves facing a discrimination claim in the employment tribunal.
The trick is that employers need to communicate acceptable standards if they allow fancy dress to be worn at work, whatever the occasion. A suitable dress code policy will suffice and a reminder to staff that they should familiarise themselves with the policy before any events will go down a treat.
To be on the safe side employers should also consider the nature of the decorations they put up throughout the workplace. Try to keep them neutral; spiders, webs, bats, pumpkins and the like. It’s so easy to offend these days so employers must be on their guard.
Enjoy your Halloween!
Holidays for the Christmas shutdown
Christmas is fast approaching and whilst it may be the busiest time of the year for some employers, for others it’s time to take a well earned break. Many close down for the Christmas holiday period and ask staff to take the time off as holiday.
When drafting contracts and policies for my clients I always check whether they have a Christmas shutdown. If they do I ensure they have a contractual right to insist staff retain enough holiday to cover the Christmas holiday period. If staff choose not to, then it must be taken as unpaid leave.
If there is no such holiday policy, or contractual clause covering this, an employer can still insist that holiday is taken over the Christmas period providing they give twice as much notice as the amount of holiday to be taken.
That works well, but what happens if the employee has already exhausted their holiday entitlement and there is nothing left to cover the period?
Can they simply be asked take unpaid leave?
That’s doubtful. If an employee makes themselves available for work, the employer has a duty to provide work as per the contractual relationship. A failure to provide the work is a breach of contract.
In this situation an employer would still have to pay the employee even if the business is closed. So the lesson here is to make the decision to shut down early, inform staff as soon as is reasonably practicable and tell them that they will need to retain enough holiday for the break. Employers should also be mindful to keep accurate and up to date records of staff holiday entitlement.1
'No witch-hunt' over sacking of South Ribble Council chief, tribunal told. The leader and deputy leader of South Ribble Borough Council have both denied that they sought to remove the authority’s chief executive because of what they believed was political bias in the run-up to local elections two years ago. Lancashire Post
A human resources professional is appealing the judgement of an employment tribunal that determined she was not a whistle-blower. Alison McDermott, 56, was hired by Sellafield Limited after working for the Nuclear Decommissioning Authority (NDA) for two years. The Whitehaven News
Ex-Havant and Waterlooville firefighter in line for payout after winning unfair dismissal claim against Hampshire Fire and Rescue Service. The long-serving crew manager, who was based at Havant and Waterloo stations, won an unfair constructive dismissal claim after repeatedly seeing his request to halve his hours blocked. The News
Drivers delivering for Amazon could be owed thousands of pounds each over employee rights claims. Thousands of drivers delivering for Amazon could be entitled to an average of £10,500 compensation for each year they have delivered for the company, according to law firm Leigh Day. Leigh Day
Here’s a selection from this week’s social media feeds
Q As an employer can you reduce an employee’s working hours?
A Yes, but you must follow a fair process. Your employment contracts may give you the right, on reasonable notice, to reduce the working hours. That is fairly straightforward. However, difficulties arise where there is no such contractual right to do so. In this instance you must consult with your employee and obtain their permission to make the reduction. That will generally mean having a good business reason for doing so and giving something back as a sweetener - possibly a pay increase or additional holiday entitlement.
If your employee is unwilling to accept a reduction in hours you have two choices. Leave it as it is and don’t impose the change or dismiss and immediately re-engage on the new hours - fire and rehire as it is commonly referred to. In these circumstances you leave yourself open to a potential breach of contract and unfair dismissal claim, so think carefully before doing so and take professional advice.2
Q My girlfriend’s employer recently changed the rules... where they now only pay sick once you've been there for 2 years. Is this legal?
A Yes - I presume the employer previously paid company sick pay at a higher rate in addition to Statutory Sick Pay (SSP) and now they only pay SSP for the first two years. Obviously they must pay SSP if your girlfriend meets the qualifying criteria regardless of the amount of time she has been employed.
If she has a contractual right to additional company sick pay and her employer has unilaterally made the change she may have a case for a breach of contract if she has suffered loss of sick pay as a result.
Q Can employers accept notice officially then decide to conduct investigation against you?
A Yes - whilst serving a period of notice you are still under contract and bound by terms relating to discipline. If it transpires that you should be called to a disciplinary meeting and it is sufficiently serious to warrant termination of your employment you can be dismissed within your notice period.
Q Hi Tim, I am an employer - please could you please explain the basic rules around custom and practice and what it means for employees and employers?
A Here’s a quote:3
‘Custome’ may be defined to be a Law or Right, not written, which, being established by long use and consent of our ancestors, hath bin and daily is put into practice’.
This sums it up extremely well. In employment law it refers to something which has developed over a period of time and has become a term of the employment relationship, notwithstanding it has never been written down in the Statement of Terms and Conditions of Employment (contract). Either employers or employees can rely on custom and practice to argue a state of affairs has existed for such a period as to make it contractually binding.
An example might be the business closes for a set period over Christmas. Employees are expected to retain holiday for the shutdown but it is not written anywhere that they should do so, notwithstanding this is the way it has always been and all the employees are aware of it. (see main article above).
Q My friend works a 20 hour contract over five days. She suffers horrendous anxiety and finds it easier to start work first thing in the morning which she was doing for 3 years until her hours were changed that she started at 12.30 or 1.30 which she finds extremely difficult. The company have refused to change her hours and we don’t know where we can go from here.
A I’m surprised that after three years the company have now decided to change her hours. I don’t know what her contract states in this regard, but was the company contractually entitled to change start times? Even if they were, it could be argued that after three years it has become custom and practice that she always starts first thing in the morning.
My advice is to raise a formal written grievance and ask that she be returned to her previous start time. Her anxiety - if it is particularly bad and has a long term adverse effect on her day to day living, could potentially amount to a disability within the meaning of the Equality Act. If that is the case, the company would be under a duty to make ‘reasonable adjustments’ to her working environment. Permitting her to start earlier would be considered a reasonable adjustment. Failure to make a reasonable adjustment may leave her employer open to a disability discrimination claim.
I have a FREE template letter for a Christmas shutdown - just email me and write ‘Christmas shutdown’ in the header and I’ll let you have it by return
If your employee has more than 2 years’ continuous service
Termes de la Ley or Or, Certaine Difficult and Obscure Words and Termes of the Common Lawes and Statutes of this Realm now in use expounded and explained (1636)