With preparations in full swing for the festive season, Head of Employment Law & Benefits, Melanie Crowley reviews typical workplace issues commonly faced by employers at this time of year and suggests our 10 top tips for dealing with them successfully.

1. Christmas party and liability for employees

Every year as Christmas approaches, our Employment & Benefits team deals with an influx of issues concerning inappropriate behaviour in the workplace and sexual harassment claims. These serve as an important reminder of the significance of respecting dignity at work and of having appropriate bullying and harassment policies in place.

Tip: Employers should ensure that employees understand that just because they are attending the Christmas party offsite, it does not mean that normal rules around appropriate workplace behaviour do not apply for the night. Ideally, employees should be regularly trained, or, at the very least, reminded that they are expected to observe any dignity at work and/or bullying/harassment policies at work-related events. Employers should introduce these policies where they currently are not in place. The policies should ideally include references to work-related social events.

2. You have been tagged

It might be said that there is no such thing as bad publicity. However, the last thing an employer or indeed employees need or want is for images or footage from its Christmas party going viral on social media sites for all the wrong reasons.

Tip: Employees should not place material on social media sites which would adversely affect the reputation of the employer. Employers should ensure that employees are aware of this, either through the company social media policy or through specific guidelines circulated before the Christmas party. Employees should also be made aware that this conduct may result in the employee being disciplined.

3. The morning after the night before

Employers are obliged under the Safety, Health and Welfare at Work Acts 2005, to provide a safe place of work. Employers should be mindful of these obligations to employees who are required to work the day after the Christmas party. This applies particularly to employees who drive or operate machinery.

Tip: Employers should inform all employees of their expectations that, should they report for work the day after the Christmas party, they must not be under the influence of alcohol or drugs. If an employer suspects that an employee may be under the influence of either alcohol or drugs, then it may be possible to start an investigation in accordance with the company’s disciplinary policy.

4. 'Secret Santa'

While 'Secret Santa' in the office is often seen as a bit of fun, the anonymity involved can sometimes result in inappropriate, and even offensive, gifts being exchanged between colleagues.

Tip: Employers should ensure that employees are aware that 'Secret Santa' falls under the dignity at work and bullying and harassment policies. As a result, employees should be encouraged to consider in advance of selecting a gift whether their choice might cause offence or be construed as bullying or harassment.

5. Religious and cultural differences

While everyone generally likes a good party, not all employees are Christian and not all employees celebrate Christmas. In addition, many employees do not eat certain meats, or consume alcohol.

Tip: Food offerings should, in so far as it is possible, provide for choice; and mocktails and non-alcoholic beverages should be as freely available as the alcoholic variety.

6. Public holidays

Three public holidays fall over the Christmas period. These are Christmas Day, 25 December; St Stephen’s Day, 26 December; and New Year’s Day, 1 January. Employees who qualify for public holiday benefit will be entitled to one of the following:

• A paid day off on the public holiday
• An additional day of annual leave
• An additional day's pay, or
• A paid day off within a month of the public holiday

Most employees are entitled to the benefit of public holidays. One exception applies to part-time employees who have not worked for their employer for at least 40 hours in total in the five weeks before the public holiday.

Tip: Employers are advised to draw up rosters and confirm with employees the days they will be required to work over the holiday period in early December. This should be done to avoid any confusion or upset among staff and to ensure compliance with the working time legislation.

7. Snow days

Where employees are available for, but are not required to attend at work due to adverse weather, employees should be facilitated in working remotely or if that is not possible paid as normal. This may occur in scenarios where, for example, the employer has closed for the day, or the employer asks their employees not to come in or to leave early.

Where the employer’s business remains open and employees are unable to attend due to safety concerns or because they need to take care of children who are off school, then, strictly speaking there is no obligation on employers to pay employees during this time. This is subject to any custom and/or practice in operation within the employer.

Tip: While the weather is still relatively mild, employers have an opportunity to put measures in place now to prepare for adverse weather in the coming months.

We recommend employers:

• Ensure they have up-to-date contact details for all employees so they can be contacted in advance if the business has to close
• Ensure employee safety by keeping up-to-date with developments from Met Éireann and taking heed of any travel warnings which may come from Met Éireann, An Garda Síochána or the Government
• Review, and implement as appropriate, any relevant policies which may be in place relating to absences or closures due to unforeseen events

If there is no policy in place, consider and communicate to employees, if appropriate, how time off during this time will be treated. For example, the employer may:

• Continue to pay employees as normal
• Require the employee to work from home
• Allow employees to take the missed time from their paid annual leave entitlement, or
• Agree that employees can make up the missed time at a later date

8. Sick days

Sometimes the excesses of the season can lead to an increase in sickness absence – some genuine, some self-inflicted. Before January 2023, unless an employer had a policy or practice in place for paying employees who were absent on sick leave, there was no statutory obligation to pay sick pay. That changed with the introduction of statutory sick pay at the beginning of 2023.

Employees are now entitled to be paid sick pay for the first three days, rising to five days in January 2024, of sick leave in any rolling 12-month period. This is subject to the requirement on the employee to provide a medical certificate from a registered medical practitioner and sick pay is capped at 70% of the employee’s daily rate or €110, whichever is greater. The exception to this is a situation where an employer’s sick pay scheme, taken as a whole, is better than the statutory sick pay entitlement.

Tip: Check the organisation’s sick pay scheme and practice. If there are waiting days before an employee is entitled to sick pay, ensure those waiting days are adhered to. If there is no sick pay scheme in place and as a result the statutory regime applies, insist on a medical certificate. Employers also need to ensure that the relevant employee’s statutory sick pay entitlement has not been exhausted already.

9. Deck the halls

Under health and safety legislation, employers are obliged to provide and maintain a safe place of work for employees. While employers’ health and safety obligations should not be used as an excuse to dampen the festive spirit in the workplace, employers should take common sense precautions when it comes to decorating the office for Christmas.

Tip: Employers should take precautions, for example, making sure that Christmas trees are not blocking fire escape routes or exits, and checking any novelty lighting for defects.

10. Inclusivity and accessibility

In a world with a much better understanding and consciousness around disability, employers who do not consider accessibility to both onsite and offsite events risk disability discrimination claims.

Tip: Ensure offsite locations are accessible to all employees and any guests who may be attending the event. Consider the impact on those with cognitive impairments. Consider language, signage and sign language.

Conclusion

Merry Christmas and Happy New Year from the partners and staff of Mason Hayes & Curran.

When you have put all our practical tips into action, relax and enjoy the festive season.

If you would like to discuss the potential impact of this issue on your business, please contact a member of our Employment & Benefits team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.