It's November – therefore we can now talk about Christmas!

Bramble Foods Ltd (the Company) generates a third of its total annual turnover in the eight weeks from mid-September onwards, in the lead-up to Christmas. As this is its busiest period, its employees are expected to work additional hours. Their contracts include a clause that requires them to “work such further hours as may be reasonably necessary to fulfil [their] duties or the needs of the business”. In 2014, the Company formalised its overtime arrangements by asking its employees to select between four to eight shifts, lasting four hours, on Saturday mornings in September and October when the Company would be producing its gift packs and hampers ready for Christmas. The Company adopted the same arrangement the following year. However, Mrs Edwards refused to sign up to the additional shifts, despite all of her colleagues doing so. Following a number of informal discussions, the Company dismissed Mrs Edwards. Its primary concern was that her colleagues would revoke their agreement to work overtime if the Company was seen to excuse Mrs Edwards. Mrs Edwards brought a claim for unfair dismissal as a result.
Whilst it accepted that there were minor flaws in the Company’s process, the Tribunal held that “dismissal was inarguably within the range of reasonable responses” as Mrs Edwards’ excuse that she spends Saturday mornings with her husband was not a legitimate one. The Tribunal considered that her refusal to work the overtime as requested had the potential to disrupt the whole business.
Many employers will be expected to meet tighter deadlines under a greater workload in the lead-up to Christmas. While this is only a first instance decision (and therefore not binding on other tribunals), it is helpful in highlighting what amounts to a reasonable request with regards to overtime. Of course, employers cannot expect their employees to agree to work overtime where they are contracted to work fixed hours and there is no clause (as above) which requires them to work more hours to meet the demands of the business. To avoid facing the same issues as in this case and to mitigate any risk of being short-staffed this Christmas, follow our top tips below:

  • Request that employees sign up to overtime as far in advance as possible – this will allow employees to plan around extended working hours as necessary;
  • Offer employees an incentive to sign up to the extra hours – for example, increased pay for any overtime worked, or a free breakfast or dinner if the employee is working particularly unsociable hours;
  • Ensure employees are given adequate rest breaks throughout the working day – this is especially important where an employee is working overtime;
  • Where possible, try to schedule a day with reduced hours (or even better, a day off) for an employee who has worked overtime the previous day – this will ensure that the employee does not feel overworked and is more likely to sign up for more hours on another day;
  • Take account of employees’ religious beliefs – not all employees will celebrate Christmas and may not mind working Christmas Eve or Christmas Day where required. Conversely, employees who do celebrate Christmas for religious purposes should be given enough flexibility to take time off at this time. Equally, employees who observe other religions should be offered the same flexibility when requesting time off to celebrate their religious events throughout the year.
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Helena Rozman

About Helena Rozman

Helena has experience in acting for both employees and employers covering both contentious and non-contentious work. Helena's experience includes defending Employment Tribunal claims and engaging in settlement negotiations; advising clients on complex disciplinary matters, exit strategies and large restructuring exercises, including TUPE and redundancy; co-ordinating and responding to data subject access requests; advising on the employment implications on business and asset purchases and outsourcing arrangements; project managing and advising clients on multi-jurisdictional projects with our international offices; drafting settlement agreements for exiting employees; advising on the employment aspects of corporate transactions and undertaking due diligence; and reviewing contracts, company handbooks and policies.

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