At this time of year employment lawyers are often busy trying to cure legal hangovers caused at the office Christmas party. Paul Whitfield looks at some of the common causes and cures.

1. Sexual Harassment.

Without doubt this is the most common employment tribunal claim brought following office parties. The combination of alcohol and a more relaxed environment can lead to inappropriate comments and behaviour. Many sexual harassment employment tribunal claims are brought following office parties. We have also dealt with a claims arising out of inappropriate secret Santa gifts.

Employers will normally be liable for the conduct of its employees during an office party. This also applies to harassment on the grounds of age, religion, disability, race and sexual orientation.

Prevention is better than cure. Without being a humbug it is worth reminding employees in advance of party what sort of conduct is acceptable. Many employers have a “Social Events Policy” setting  out acceptable behaviour at events.

2. Alcohol.

The safest but also the most unrealistic policy would be to ban alcohol. Realistically, employers should be aware of the risks involved in providing alcohol to their employees and consider limiting the amount of free drinks. There have been cases in the past where an employer was found liable for facilitating the supply of alcohol to underage employees. Employment tribunal’s have also found employers partially to blame for the misconduct of their own employees when they have provided a free bar and encouraged excessive drinking.

Good practice would be to always have non-alcoholic drinks available and to have at least one manager present at the party to ensure no one overindulges to excess.

Employers should also consider providing transportation to and from the venue or at least provide taxi firm numbers to avoid the risk of any employees driving under the influence of alcohol.

If the party is a midweek party then it would also be worthwhile reminding employees that they are required to work the following day unless booked as holiday.

3. Social Media.

Everybody these days has a camera or a videocamera on their mobile phone. Smartphones mean employees can take photographs or video footage at the party and have it uploaded to Facebook or YouTube within minutes. This combined with alcohol can be a dangerous cocktail.  A number of employment tribunal claims have centred around unflattering pictures and videos and associated comments. We are aware of at least one case this Christmas where an employee’s tweets from the office party has led to their dismissal for gross misconduct.

This is a very difficult area to police and again may be worth covering in either a social media or social events policy.

The key, as with many things is to bear the risks in mind when planning the event and if necessary have a policy in place and remind the employees of that policy in advance.

Fox Whitfield have considerable experience in dealing with these sorts of hangovers but can also help you plan and draft any necessary policies.

Contact us on 0161 283 1276 or Paulw@foxwhitfield.com

Paul Whitfield has specialised in employment law for over a decade. Paul looks at some FAQs about Employment Tribunals.

Is it true that Employment Tribunal Claims are increasing?

No. In fact the most recent statistics from the Tribunals for October to December 2010 show a drop in the number of claims being brought in the Employment Tribunals by over 50%. However, even this lower figure represents almost 80,000 claims being lodged against employers by employees in that three month period.

What are people claiming?

The most common claims (30%) are for unfair dismissal, breach of contract or redundancy. 19% were for unpaid wages.  17% were for holiday pay or other Working Time Directive claims and 14% were associated with Equal Pay. The majority of remaining claims dealt with discrimination and there was a trebling of age discrimination claims in the period.

Are these statistics good news for employers?

It would seem so but the statistics may not represent the reality of the situation. A recent survey conducted by the Chartered Institute of Personnel and Development (CIPD) suggests that more and more employers (7 out of 10 surveyed) are using compromise agreements rather than risk employment tribunal claims. As a result although there are fewer claims it does not necessarily mean that there are fewer disputes.

The CIPD survey found that over 50% of employers served has experienced a malicious complaint by an employee and that the Tribunal system meant that employers had no protection against such claims.  The legal costs and management time costs of dealing with claims can be very high even if the claim can be successfully defended. In most Tribunal claims each party has to pay their own legal costs even if they are successful. Costs are only awarded in a very small number of cases where one party has acted unreasonably.

Why use a compromise agreement?

A compromise agreement is the only effective way for an employee to give up their statutory employment rights usually in exchange for a payment from the employer. The agreement has to comply with strict rules and the employee has to take independent legal advice before signing the agreement.  The CIPD survey found the average payment being made under a comprise agreement was £10,000. Fox Whitfield’s experience is that more and more disputes are being settled at a very early stage by the use of compromise agreements.

How easy is it to lodge a claim with the Employment Tribunal?

It is very simple. The ET1 form can be filled in on-line and with a click of a button submitted to the Employment Tribunal. There is currently no fee to pay to lodge a claim but this is under review. Employees only have a short period, normally of three months, to lodge a claim.

What do I do if I have a claim made against my company?

It is essential to act quickly as the response to the claim must be presented to the Tribunal within 28 days. Legal advice should be sought urgently to ensure the response can be prepared and submitted within that time. Failure to lodge a response in time may result in you being unable to defend the claim.  Fox Whitfield will normally offer a fixed fee to draft and lodge the response for its clients.

Paul can be contacted on 0161 283 1276 or Paulw@foxwhitfield.com or click here for more options.

Paul Whitfield, our top employment law solicitor looks at important changes resulting from the Equality Act 2010.

I was told that it is now illegal to ask job applicants about their health during recruitment. Is that right?

In most cases yes. The Equality Act 2010 came into force in October and it limits what an employer can ask applicants about their health. Only in limited cases is it now lawful to ask applicants about their health before they are offered employment. Questions may only be asked if it is necessary to find out if the applicant can carry out basic functions of the role. For example, it would be acceptable to ask applicants for a manual handling role if their health would affect their ability to carry out that aspect of the role. Employers who ask applicants to complete detailed health questionnaires should stop doing so now.

Does the Equality Act make employers publish information about the rates of pay for men and women?

It was intended that employers with 250 or more staff would be obliged to do this from 2013 but the Collation Government have said that they oppose this legalisation and it is unlikely to be brought into force. If it was to be brought into force it would be likely to be restricted to only employers who have lost equal pay claims and not all employers.

Can we still make our employees’ keep their pay confidential from each other?

Under the Equality Act, pay secrecy clauses will be unenforceable if an employee discusses their pay to see if they are being discriminated against. A woman asking a male colleague in the same role what he earns would be protected but two male colleagues will not be and their pay secrecy clause would remain enforceable. There is nothing in the new laws that would force employees to disclose their pay details if asked by a colleague.

Many employers will carry on including pay secrecy clauses in their contracts but will not enforce them where that would be inappropriate.

Does the Equality Act create lots of new types of discrimination claims?

Despite some of the media coverage, no. The law on discrimination was very complex and messy as a result of the law for each form of discrimination being different. The Act tries to make the law for each type similar and clarifies the scope of the law to cover ‘protected characteristics’ on which it is ­unlawful to discriminate these being age, disability, race, religion, gender, sexual orientation, ­marriage and maternity. None of which are new.

Paul Whitfield can be contacted on 0161 283 1276 or click here

In an Ask The Experts article in the Didsbury Magazine, Hale & Bowdon Magazine and Bonus Sapor, Paul one of our employment law solicitors, looks at some common employment law issues around holidays.

Link to Holidays and the Law Article

An employee claims he was ill for a week of a 2 week holiday. He wants me to pay him sick pay for a week and let him take the second week of his holiday another time.

Recent case law indicates that employees that become ill during a period of statutory holiday may choose to take that time as sick leave rather than holiday. However, they would be required to comply with the normal company sick leave policy which would normally require them to tell their employer the day they are ill.  Employers should ensure their holiday pay and sick leave polices deal with this.

We told employees stranded by the volcanic ash cloud that their additional days absence would be paid and treated as holiday. An employee who had to use all his holidays now wants to challenge that.

If it was made clear to the employee that the absence would be treated as holiday at the time and they agreed to this it is hard to see how they could challenge it. Had you not treated the absence as holiday the employee would not have been entitled to be paid for those days. Subject to the business requirements you could offer him some unpaid leave.

If an employee is absent for a large amount of the holiday year and so can’t take holidays, do we have to carry those days forward into the next holiday year?

Yes, if an employee can’t take statutory holiday as they are absent on maternity or sick leave they should be permitted to carry those days holiday into the next holiday year. In many cases this can be tagged onto the start or end of maternity leave. It may be possible to limit this to statutory holidays in your contract of employment if your employees get more than the statutory minimum. Employees also have the right during sick leave to take days as holiday and to receive holiday pay for those days, even if they have exhausted their right to sick pay.

If an employee fails to take their holiday entitlement in one year can they carry it forward to the next year?

Unless the contract of employment says otherwise the untaken holiday would be lost in most cases. Only if the employee is unable to take the holiday due to absence would the employer be required to permit the holiday to be carried forward. It is wise to have this covered in the contract of employment or holiday policy.

Speak to Paul, one of our employment law solicitors on 0161 283 1276

or at paulw@foxwhitfield.com www.foxwhitfield.com