It’s the most wonderful time of the year…if you don’t have to work overtime.

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It’s the most wonderful time of the year…if you don’t have to work overtime.

It’s the most wonderful time of the year…if you don’t have to work overtime.

The Employment Tribunal (“ET”) has concluded that an employee was not unfairly dismissed when they refused to work overtime in the case of Edwards v Bramble Ltd.

Bramble Foods Ltd (the “Employer”) employs around 75 people and is a premium British food manufacturer and wholesaler who produces Christmas food and hampers. The Employer's busiest period is from mid September to late December, due to increased demand for orders to be fulfilled before Christmas. During this period staff are expected to work extra hours.

Prior to 2014 working overtime was voluntary. This changed from 2014 onwards when the Employer required their staff to work overtime by formalising the arrangement and incorporating it into the contracts of employment. Employees as part of the formal agreement were asked to specify which Saturday mornings they could work during the period of demand. Edwards (the “Employee”), refused to enter into a formal agreement to work overtime.

In 2015, the staff were asked to indicate which Saturdays they could work during the period of demand. Once again, the Employee refused to work overtime stating that on Saturday mornings she spent time with her husband.

The Employee became disruptive to the staff around her, which included boasting about her ability to have a “lie-in” on Saturday mornings. This started to unsettle the colleagues, creating animosity and resentment in relation to working the overtime. The Employee was sent home for three days on 5 August 2015 due to her disruptive behaviours and attitude.

Over the coming weeks the Employer had several informal discussions with the Claimant regarding her uncooperative behaviour. It was explained to the Employee that the business need increased during the months’ prior to Christmas and that her refusal to work overtime placed extra pressure on the members of staff who were compliant in working overtime. On 1 September 2015, the Employer and Employee had a formal meeting regarding the matter of overtime, but the Employee remained firm with her position. The situation worsened on 14 September 2015 when a colleague of the Employee raised a formal grievance in relation to her behaviour.

Concerned about the adverse effect the Employees' behaviours were beginning to have on the other staff members, the Employer decided to dismiss the Employee for gross misconduct following a disciplinary hearing on the 7 October 2015. In making this decision, the Employer took into consideration various factors, which included the Employer's ultimate concern that the Employee was setting a precedent for the other members of staff to withdraw their agreement to work overtime.

As a result of the dismissal, the Employee claimed that she had been unfairly dismissed. Despite their being a number of minor flaws in the Employer's dismissal procedure, the Employer's reason for dismissal fell within the range of reasonable responses. The Employee was found to have no legitimate reason for refusing to work overtime.

Requiring staff to work overtime or “unsociable hours” over the Christmas period has become an increasing reputational issue for Employers over the past few months. In October 2016, a petition called “Stop Shops opening on Boxing Day” opened and received 225,000 signatories. The petition called for retail staff to receive longer breaks over the Christmas period, allowing staff “time to relax and enjoy the festivities like everyone else.”

Taking a look at the Christmas period of 2016, Christmas Day 2016 falls on a Sunday and subsequently Boxing Day falls on a Monday. As a result of this, the 26 and 27 December 2016 will be Bank Holidays. There is no right for employees to have the Bank Holidays off work or for any time taken off to be paid, unless otherwise provided for under the contract of employment. Conversely, some employers grant their employees leave over the Christmas period, with some shutting down their business entirely.

For more information please contact our employment team on 0345 070 6000.