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HR Myths at Christmas | What Every Employer Needs to Know

HR Myths at Christmas | What Every Employer Needs to Know

Date: 24th December 2020 | By: Claire Malley | Categories: Employment law, HR

hr mythsRead our round-up of the key HR myths at Christmas and the truths all employers and business owners need to know to manage their team effectively over the Christmas period.

1. HR Myths: Temporary Christmas-cover workers do not get holidays.

Truth: All workers and employees get annual leave, including temporary, fixed term, zero hour or casual staff. The legal minimum is 5.6 weeks inclusive of bank holidays and this is pro-rata’d for all those who do not work full time. What employers need to be careful of is including the holidays in the workers hourly pay, also known as rolled up holiday pay, as this is a common but risky practice.

2. Myth: Temporary Christmas-cover workers do not have a contract if there is nothing in writing.

Truth: A update in April 2020 gave workers the same rights to written terms from their employer as employees. This means that an employer must provide on day one (or earlier) details about:

  • the hours and days of the week the worker or employee is required to work, and whether they may be varied and how.
  • entitlements to any paid leave.
  • any other benefits not covered elsewhere in the written statement.
  • any probationary period.
  • any training provided by the employer.

Failing to do so could result in a claim even for those who are only with you on a temporary basis.

3. HR Myths: An end of a temporary contract is not a termination.

Truth: Not renewing or extending a fixed term contract on its expiry still constitutes a dismissal and the employee will be due their contractual notice period. If an employee has been employed for less than 2 years, it is unlikely to be an issue as they will not have the required length of service to bring an unfair dismissal claim. However, employers need to be mindful that fixed-term workers are protected from detriment for being fixed-term from day one of their employment and such claims do not need to pass the 2-year service test.

4. Myth: All employees are legally entitled to get bank holidays off or receive pay for them.

Truth: There is no legal right to provide special treatment on bank holidays. The working time regulation makes no mention to the bank holidays. Many employers assume that bank holidays are an automatic leave day/s for all employees. In truth, there is no legal obligation on the employer to allow employees take bank holidays off. It is entirely up to the employer to decide whether they would like to give employees bank holidays as leave days, they are well within their rights to request employees work it. However, if staff do work the bank holidays then the employer still needs to ensure they receive the minimum 5.6 weeks holidays over the annual leave year.

5. HR Myths: All employees are entitled to enhanced pay for working Christmas day or any other bank holiday.

Truth: This is not the case. Although it is a nice incentive to give employees extra pay for working Christmas day or any other bank holiday to ensure smooth operation of the business, there is no legal obligation on the employer to pay anything more than the normal rate of pay. If an employer decides to pay extra, it is entirely up to the employer to decide how much to pay, there is no expectation or formula that should be followed.

6. Myth: “Banter” at Christmas parties/ zoom parties or via work organised social media is not sexual harassment.

Truth: “Banter” is often used as an excuse for inappropriate behaviour, especially when it comes to acts which, otherwise, would be seen to be harassment, bullying or victimisation. Tribunals continually reject the notion that an employee can justify their actions as “banter” when defending a sexual harassment claim for example. Whilst there may be no Christmas parties this year, work events are no different, just because it is done outside of working hours or workplace, does not mean that “banter” is then acceptable, alcohol fuelled or not. It is important to remind employees that events organised and held by employers are likely to be seen as an extension of the workplace. Ensure that you have a strong equality and diversity policy to ensure all employees know the company standard, both in and out of work.

7. HR Myths: Employees are entitled to be paid full pay for “snow days”.

Truth: There is no obligation on the employer to pay full pay for “snow days” where an employee cannot attend work due to being snowed in. However, the employers should check employees’ contracts of employment as some employers do put provisions in place in event of bad weather. What employers also need to consider in the year 2020 is do staff need to come into the workplace at all. If the employee can work from home, this would reduce the need for travel, and they won’t be affected by such disruptions.

8. Myth: Employees on sick leave should not be invited Christmas parties.

Truth: This is a common misconception. Whilst there are no physical Christmas parties this year, remember to include them the employee in activities, virtual events and remember to include them in any Christmas gifts you may be sending. Employees on sick leave should be treated the same as others to avoid any possible discrimination claims.

9. HR Myths: Employers can ask employees to “forgo” their rest breaks over the festive period because it is the employer’s busiest period.

Truth: This is not the case and if the employees are asked to forgo their breaks, the employer could be facing a claim for breach of Health and Safety and Working Time Regulations. There is an obligation on the employer to afford the worker their right to a rest break and the employer should be actively encouraging their employees to take rest breaks. An employee working over 6 hours is entitled to a 20-minute break.

10. HR Myths: Employers can force employees to take annual leave during the festive period.

Truth: Most employees would be happy to take annual leave during the festive period, however this is not always the case and the employers need to give careful consideration when asking employees to take leave. The employer can request employees to take leave, but an appropriate period of notice must be given which is double the period of leave required to be taken. For example, if the employer wants an employee to take 5 working days’ leave, 10 working days’ notice must be given. It is worth mentioning that the employee can refuse this, and the employer needs to be mindful that their request to enforce annual leave is in no way discriminatory.

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