DESPITE the merchandising phenomenon of Christmas Creep, where stocking fillers and mince pies are making an appearance ahead of Hallowe'en, the countdown to Christmas does not officially start until John Lewis releases its advert. Well, in our house at least, and this year we were not disappointed. Yes, the boxer is the star of the show but any parent who does not empathise with the father in this advert has paid someone else to build the trampoline.
Watching this, however, did remind me that John Lewis does not just cobble its adverts together with only 50-something sleeps until Christmas. Neither, for that matter, do supermarkets leave it to the last minute to order festive stock. Retail planning for Christmas begins in summer with the run-up to Christmas for each supplier following soon after. As it is can be their busiest time of year, it takes careful planning and often a heavy reliance on employee overtime.
Overtime has acquired a bad name of late with employers, thanks to recent holiday pay decisions, including the requirement for non-guaranteed overtime to be paid during annual leave as well as the lingering uncertainty of whether or not voluntary overtime should be included in holiday pay.
For many employers, it is something of a necessary evil and provision is made in contracts of employment ranging from ‘your normal hours of work are 40 hours per week and such additional hours as are necessary’ to more formal arrangements where employees are required to work specific additional shifts at, say, weekends, ensuring sufficient manpower to meet demand.
It was a more formal overtime arrangement the employer in Edwards v Bramble Foods Limited ET/2601556/2015 wished to implement to ensure it could produce and pack its goods in the 8-week period from mid-September to meet Christmas orders. The contract of employment contained the ‘such additional hours’ clause and all employees were asked, and agreed, to work 4-8 Saturday mornings but Mrs Edwards refused because she wanted to spend this time with her husband.
After several discussions with her about her refusal, the employer dismissed Mrs Edwards because it believed if it made an exception for her, other employees would refuse to work overtime. It is also believed Mrs Edwards’ behaviour including mocking others for agreeing to work was having an adverse effect on the workforce and threatened to derail its careful Christmas planning.
Mrs Edwards claimed her dismissal was unfair but the Tribunal did not agree; “she had been given a contract of employment which said she may be ‘required’ to work additional hours and she had no legitimate reason for refusing what she accepts was a reasonable management instruction. She just didn’t want to do the work it seems. The consequences for the respondent, had she not been dismissed, might have been disastrous”.
The decision itself is not surprising – Scrooge-like employment Law advisers regularly advise employers on dismissal, even at Christmas, for acts of ‘defiance’ such as this, but it will nevertheless give employers comfort. What is more interesting – and potentially problematic – is if the employer requires employees to do extra work on a Sunday and there is a refusal from a practising Christian on the grounds he or she is required to attend Church. Put simply, dismissal in these circumstances will be regarded as indirect discrimination unless the employer can show it is objectively justified. It is not difficult to see the requirement for employees to work extra hours during the employer’s busiest time of year is a legitimate aim, but it’s often forgotten this requirement must be a proportionate means of achieving that aim. Before instructing the employee to work, the employer should first discuss the situation with the employee and look for ways to avoid having to work.
Aside from overtime, the main problem with an early festive countdown is that by the time we get to Christmas, we've all had enough. It would come as no surprise to learn more shop workers refuse to work on Sundays in the run-up to Christmas than at any other time of the year - because they can't take anymore of Slade’s Merry Christmas Everybody, on a continuous loop. Irrespective of religion, they have the right to refuse to work Sundays. So next time you watch the John Lewis advert, spare a thought for those employers and employees who help make Christmas happen.
Donna Reynolds is a Partner with CCW Business Lawyers