On the 11th day of Christmas Your HR Lawyer gave to me, answers to day 10’s quiz

So let’s see how you did on our HR Quiz!

Question 1: If an employee turns in late for work during the festive period can I deduct their pay?

a)Yes of course, go ahead, no questions asked.
b)Absolutely not, how dare you even suggest such a thing
c)Yes if it’s there is a contractual provision for such a deduction

Answer: b and c.

You can’t deduct wages unless there is a contractual provision. If you don’t have such terms for a deduction within a policy or terms and conditions of employment (contract) you may be taken to an Employment Tribunal for unlawful deduction of wages.

Question 2: Is it right that you don’t have the same responsibility for the duty of care for your employees at a work social event?

a)Yes that is correct, anything that happens is on their head not mine
b)No, I could be held responsible for everything that happens

Answer: b, your Christmas party is work related and therefore you have a duty of care this includes having consideration towards how someone gets home, the person who has had too much to drink, the on-going clash of personalities that could end up in a fight. You need to make sure you have laid down the ground rules and consequences and then ensure you are in a fit enough state to manage any issues that arise.

Question 3: An employee got way too drunk at the office party, broke the photocopier and harassed another employee. I can withhold his bonus can’t I?

a)Yes, absolutely, the money can be used to pay for a new photocopier
b)No, that money is the employees and I can’t take it off them , they may take me to court
c)Yes, if the payment of the bonus is not a contractual entitlement

Answer: b and c depending on whether the bonus scheme is contractual or discretionary. If it is written into their contract then no. You need to be clear in the terms of the bonus scheme and, in deciding not to pay the bonus, you have not acted irrationally or perversely.

Question 4: An employee has been asking me about their career prospects and pay, the best place to discuss this with them is informally at the Christmas party

a)Yes, great idea, mustn’t let these things get too technical
b)No, there is a time and a place and a procedure. What would HR say?!!
c)It probably isn’t a good idea for a number of reasons but if it comes up in discussion….

Answer: It’s probably a combination of all 3 depending on your culture, your employees and your ability to be objective, fair and consistent.

Whilst there is a time, a place and no doubt a procedure, you might have the culture where things like this are talked about more openly and informally but I would be careful not to agree anything or commit to anything until you can sit down and give it the attention it deserves.

Or, you might have an HR professional suggest that a more formal approach is required. They are doing this to protect you against claims from the employee and to ensure fairness and consistency. I dare say they would be encouraging you towards a more formal approach to give discussions like this, and the decisions made as a result, the gravitas it deserves

My advice is if it does come up in conversation feel free to have a general discussion but I would leave your Christmas party for fun and festivities and give yourself and your employees a break from talk about work.

Question 5: An employee has pushed and threatened another employee, I can sack him on the spot for gross misconduct can’t I?

a)Yes of course, you can’t have a violent employee working with you
b)No, there is a procedure for this that you must follow
c)No, but you can sack him, you just have to do it in a meeting

Answer: b and c

You can sack him, if….

So, best advice is to follow your internal disciplinary process, as soon after the event as possible – do not unreasonably delay your investigations as this could prejudice your case.

Start with an investigation, ask people who witnessed it to tell you in their own words what they saw.

Speak to the 2 people involved in the fracas, ask them to describe what happened.

Have someone take notes for you as you ask the questions.

Then decide whether formal disciplinary action is required. If it is, arrange to meet the employee remembering that they are entitled to have someone with them to support them. Make sure you tell them in a letter what the meeting is about and make it clear that, if you consider it to be potential gross misconduct, that one of the outcomes could be dismissal. Remember to send them all the paperwork you will use to make your decision on the outcome so that they get a chance to put their case forward.

Take into account the evidence, past history of misconduct, and reasonableness – would a similar employer in your situation come to the same conclusion as you and is that outcome proportionate to the misconduct?

You can sack him if both the proportionality and reasonable test suggest that dismissal is the appropriate response.

Always get advice from an HR professional or Employment Lawyer.

Question 6: One of my employees is demanding the bank holidays off as she is a Christian, do I have to agree?

a)Yes or else you will be taken to an employment tribunal for discrimination on the grounds of religious belief
b)No, everyone has to work bank holidays

Answer: b – there is no statutory right for employees to have bank holidays off. However, you should give her request the same reasonable consideration that you would give to any other request.

If she is contractually required to work bank holidays she cannot refuse, even for religious reasons. However, you would need to be mindful of the Equality Act that protects employees against indirect or direct discrimination.

In this case the employee could claim indirect religious discrimination if it puts that employee at a disadvantage compared with other employees of different or no faith.

You would need to have a justified reason for such a request and consideration for the culture you have or are looking to create, employee engagement and fairness and consistency!!

How did you do?
With less than a week to go to Christmas- are you more worried about HR issues than you should be? Let us help you! Call us on 0115 870 01050 or email nickie@yourhrlawyer.co.uk