Legal


Laying down the law Claudia Gerrard A Christmas gift?


Claudia Gerrard wishes you a merry legal Christmas, but there’s a lot to bear in mind or yule be sorry


The workplace at Christmas T


he majority of the Equality Act 2010 came into force in October 2010, after which there was an expected increase in employment


tribunal claims. This trend is expected to change following the introduction of tribunal fees in July of this year. But it doesn’t mean that employers can afford to be less vigilant when dealing with employees. There has been an alleged increase of 74 per cent in the number of sex discrimination claims lodged and there are still an estimated 5,000 new employment claims per quarter. Claims could arise from the most unlikely sources, particularly at the time of religious festivals, such as Christmas…


Pay at Christmas time – bonuses or not?


Christmas in the employment sector is always fraught with difficulties. A few years ago, it was reported that a care homes company in Devon had taken apparently disproportionate steps to protect itself against religious discrimination cases. The care homes usually paid staff extra for working on Bank Holidays, including Christmas Day and Boxing Day. However, to promote equality and diversity in the workplace, the company had apparently refused to pay any extra bonuses as both days that year fell on a weekend. It was felt that to do so would discriminate against non-Christians. At about the same time, it was reported


that a Christian employee brought a case against British Airways, which prevented her from wearing a cross at work. In January of this year, the European Court of Human Rights decided that this requirement was unlawful. It could be discrimination on the grounds of religion to prevent someone wearing a symbol of their faith at work. Like any form of discrimination,


religious discrimination is an emotive subject and it is easy to get it wrong – especially when you try to please everyone. If in doubt, try following accepted,


traditional approaches and even consulting with employees or unions if a decision is likely to be viewed as unfavourable.


Workplace parties – who can be excluded?


Of equal interest are some of the issues surrounding office Christmas parties. Most people are aware of the usual problems associated with office parties: alcohol, harassment and the like. However, a recent query raised a novel and unusual legal question. The query came from an employer who didn’t want to invite agency staff to the Christmas party. The reason given was that there were a lot of contractors and the cost would prove prohibitive. This decision gave rise to a number of


legal issues all stemming from the Agency Workers Regulations 2010. This says that all agency workers have a number of basic rights, known as Day One Rights, which apply from the time they start work at a


company. These include access to facilities such as canteen and similar facilities, childcare facilities and provision of transport services. But no mention is made of social


amenities like parties. So can the definition of ‘amenities’ be stretched to include inviting agency staff to the office Christmas party? The definition is at best vague and


opinion is generally divided as to whether it would include social amenities, like Christmas parties. It can be argued either way, probably in favour of the employer who wants to exclude agency staff from the festivities. A Christmas party is a social perk and not a basic necessity such as canteen or transport facilities. The advice, therefore, is that the employer could probably ‘get away with it’ – just. Although that does seem to contradict the spirit of Christmas and, in a practical sense, could impact negatively on staff morale.


December 2013 Page 33


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