Paul Brown: How to avoid an expensive legal hangover

Paul Brown is a Partner with Anderson Strathern

But spare a thought for those who keep us going at this time of year. Our food & drink and tourism sectors barely get a break, some almost literally. Whilst most of us wind down, this is the time for those sectors to gear up. Our hotels, bars and restaurants work overtime to meet our expectations and hopes.

In Scotland, food and Drink - and tourism – are booming. That brings its own challenges. One of the main challenges facing the restaurant sector today is “location, location, location”. In cities, there is high demand for quality space and growth could be constrained by lack of availability. More and more sites are being granted consent for change of use to Class 3 as restaurant operators compete with retailers for prime sites. Evidence of this has been the recent success of the mixed-use scheme at St Andrew Square in Edinburgh, now known as “cuisine quarter’. with new entrants to the Scottish market such as Dishoom, The Ivy, The Refinery and Gaucho. There is a feelgood factor of established London restaurants coming to regional cities which we in Scotland should continue to build upon.

As with all employers in the rush up to Christmas, those in these sectors have to be very aware of long hours worked by employees. Tempting as it may be to work employees’ fingers to the bone, the Working Time Regulations require appropriate time off and rest breaks to be given. All time worked has to be closely monitored and appropriate rest periods given. Beware of overtime, “on-call” and split shifts! In addition, the National Minimum Wage Regulations ensure employees are paid the correct amount for the actual hours they work, not what they are contracted to work. Hotels and restaurants are being targeted for enforcement and fines could follow.

It can, of course, be the season where people get a little carried away at Christmas parties and say or do things they might regret or even worse, things which get them disciplined or sacked. Some behaviour can be excused but not all.

Hoping not to appear too Scrooge-like, there are certain sensible ideas for all employers which might provide guidance for this season of goodwill to all, including staff at party venues – but at the same time, it is necessary to encourage reasonable or sensible behaviour. Employers might consider:

l encouraging or offering to be a “designated driver”;

l reminding employees of policies and expectations, including harassment and bullying;

l inviting those off sick to the office party, regardless of whether they will come;

l carrying out risk assessments for lone workers;

l the potential impact of the misuse of social media, both for the reputation of the company and the protection of individuals, especially under the influence of Christmas spirit! ;

l Christmas bonuses – discretionary bonuses are less so, the more often they are given. Don’t discriminate against those off sick or on maternity leave.

l when decking the halls, take precautions for health & safety;

l that holiday pay should no longer be calculated just on basic pay.

In this season of goodwill, employers in all areas should take care to approach such matters with a degree of understanding or simply patience with an open and fair hearing. Employment tribunals still approach dismissal issues by reference to the reasonableness of the employer since the case of BHS v Burchell in 1978. For millennials, that is ancient history but for lawyers and tribunals, it remains the benchmark.

There has been plenty to worry about in 2017 but the good news is that it has been a great year for the Scottish food & drink and tourism industries. The natural beauty, history and one of the best natural larders in the world have culminated in the Rough Guides voting Scotland the No 1 country to visit in the world. This should be celebrated. At this time of year, Edinburgh, in particular, will host thousands of revellers from all over the world. What better time to showcase our hospitality and excellent produce than at the biggest party of the year? So our auld acquaintances should not be forgotten but new ones brought to mind with the same spirit of friendliness and hospitality for which we are known and can all be proud. Roll on 2018!

Paul Brown is a Partner with Anderson Strathern