Christmas period issues: more frequently asked questions

Matthew Briggs of Osborne Clarke continues a series of articles on issues related to the Christmas period with more frequently asked questions.

Can we still refer to 'Christmas' or should we use a generic term such as 'festive season'?

Employers should avoid fostering a working environment in which employees feel that a term such as 'Christmas' is forced on them. A consistent approach is recommended. In the same way that Christmas may continue to be celebrated by Christians, other religious celebrations should also be able to retain their identity. Muslim employees should not be discouraged from celebrating Ramadan or Jewish employees from celebrating Hanukkah, for example. Provided that employees' various religions and beliefs are considered and accounted for, employers do not need to refrain from using the term 'Christmas'.

Can we refuse a request for leave over the Christmas period?

Employers should operate a clear and reasonable leave procedure that requires employees to give sufficient advance notice of leave requests and allows for a degree of flexibility depending on the circumstances.

If an employee fails to give sufficient notice of his or her request for leave a refusal may be justified. However, the employee may have been unable to take his or her full holiday entitlement during the year, in which case a refusal could be unreasonable and risk the employer breaching its obligations regarding statutory holiday entitlement.

Employers should be mindful of the need to avoid disadvantaging employees who practise a particular religion or belief. If an employee has requested leave because of his or her Christian beliefs, a refusal to grant the request may be discriminatory unless there is a legitimate business reason. Where staffing levels are insufficient, all leave requests should to be considered equally. For example, the employer could operate a lottery to determine who is to be granted leave, and employees who are not able to take leave at the requested time could be allowed to carry it over and given priority in the future.

How should we deal with an employee's request for time off to celebrate other religious festivals?

Employers should consider any request for leave where it is reasonable and practical for the employee to be away from work and he or she has sufficient holiday remaining to cover the request.

Again, employers should be mindful of the need to ensure that they do not disadvantage those who practise a particular religion or belief. They must also be careful with regard to any criteria applied when deciding who should, and should not, be granted leave, while, at the same time, balancing the needs of the business against the needs of employees.

We would like to close the office over the Christmas period. Are there any risks attached to requiring employees who do not celebrate Christmas to use their holiday entitlement?

Employers are able to specify the times when employees are permitted to take their leave, but need to consider whether this discriminates against some members of staff on the grounds of their religion or belief. For example, a Christmas closure may prevent individuals from taking leave at times of specific religious significance to them. In this case it might be possible for the employer to make arrangements for these individuals to form a skeleton staff over Christmas and take time off on their preferred dates instead.

Again, employers must balance the needs of the business and those of the staff. If a Christmas closure disadvantages members of staff with a particular religion or belief, the employer must show that the closure is a proportionate means of achieving a legitimate aim. For example, a factory may be justified in closing its operations over Christmas if there are traditionally few or no orders to process during this period.

Should we be concerned about Christmas decorations? Are they a health and safety hazard?

Employers should remember their health and safety duties towards employees, contractors, agency staff, visitors and clients.

Slips, trips and falls are the cause of most accidents in the workplace and often result from the condition of floors, poor lighting or untidiness. Christmas decorations can be permitted as long as workplaces are kept tidy, trailing leads that create tripping hazards are avoided and passageways or corridors are kept clear. Employees should also be reminded to avoid overloading sockets by minimising the use of adaptors, and to switch off equipment when it is not in use.

Following a tough year we cannot afford to provide the usual Christmas hamper. Will this cause us any difficulties?

There is a risk that staff benefits such as Christmas hampers become part of the terms and conditions of employment implied through custom and practice. To establish whether this is the case involves looking at the intention of the parties, whether past practice has established that a Christmas hamper is always provided (and therefore reasonably expected), or whether it is clear that the benefit is discretionary and depends on the success of the business during the year. If providing a Christmas hamper becomes implied through custom and practice, a failure to provide one may amount to a breach of contract. However, if staff clearly understand that the Christmas hamper is a discretionary benefit, it will not become part of the terms and conditions of employment simply because it has been provided for a number of years.

An employee has complained that another employee, who has strong religious beliefs, has been harassing her for celebrating Christmas but not taking the religious aspect seriously. What should we do?

You should speak to both employees. If matters cannot be resolved informally an investigation should be conducted, and the employees questioned more closely. Any other relevant parties, such as witnesses, should also be questioned. If appropriate, disciplinary action should be taken against the harasser.

It is possible that the complainant has suffered harassment relating to her religion or belief. Even if conduct does not amount to harassment it may still amount to direct discrimination if there is less favourable treatment on the grounds of religion or belief. Religion includes 'any religion' and belief includes 'any religious or philosophical belief', as well as including a lack of religion or belief. Therefore atheists, humanists and agnostics will be protected from harassment.

Further, irrespective of whether the harassment relates to the employee's religion or belief, she may have a claim under the Protection from Harassment Act 1997. If she has suffered harassment in the course of her employment, there is a risk that the employer could be held vicariously liable for the harasser's actions. Employers should seek to reduce this risk by implementing a bullying and harassment policy and bringing it to the attention of all staff.

The next topic of the week article will be the first in a series on going to tribunal and will be published on 14 January.

Matthew Briggs is a senior solicitorat Osborne Clarke (matthew.briggs@osborneclarke.com)

Further information on Osborne Clarke can be accessed at www.osborneclarke.com.