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Law: Beware the other millennium bug

Every 12 months or so, at around about Christmas time, there's an outbreak of a strange festive ailment. This year, Jane Liddington discovers a particularly virulent form of millennium flu in the nation's workplaces. Here's how to diagnose it - and how to treat it
British bosses have all heard a great deal about the millennium bug and what it may do to IT systems. But what effect will a slightly different form of that bug have on employees? Will they catch millennium flu (MF)? And what can companies do about it if they do?

Less virulent forms of flu occur every year around the end of December, resulting in employees failing to report for work between Christmas and New Year or behaving out of character when they do show up. Doctors (and employment lawyers) are expecting a stronger strain of the virus this year.

The bug may well have an incubation period of several weeks, becoming fully symptomatic from Christmas Eve (or, in some cases, even earlier) and lasting until 3 January or later. The Government has declared a special holiday on 31 December, and that, coupled with the fact that Christmas Day, Boxing Day and New Year's Day all fall on weekends (with corresponding bank holidays during the week) means that the bug will have a longer lifespan than the normal non-millennium strain.

The symptoms are variable. Listed below are the most common ones, as well as the most effective treatments. It is not uncommon for the sufferer to show several or even all of these symptoms.

Symptom: Reluctance to abide by contractual terms, demands for bonuses and extra holiday.

Treatment: In some sectors, such as the NHS and London Underground, these symptoms became apparent some time ago. Subsequent negotiations with unions resulted in agreements involving, in some cases, large injections of bonus and/or time off in lieu of any shifts worked over the holiday period.

When such measures have not been adopted or agreed, some employers are hopeful that the workforce will simply abide by its contractual terms and continue working as normal without inducements. They will be relying on the fact that there is no statutory right for employees to have bank holidays off. There is, however, often a contractual right.

Employers should look at their contracts and also take into account any custom and practice that has evolved in their business in respect of such arrangements.

Even when employees are entitled to bank holidays, there is some doubt as to whether the one-off holiday announced for 31 December is, in fact, a bank holiday. It will be a brave employer who insists on his staff reporting for work that day.

Employers should ensure that every employee knows which days he is expected to report for work. Last-minute requests for holiday (whether paid or unpaid) may have to be refused.

Symptom: Marked reluctance to appear for work on 29 and 30 December, often accompanied by a self-certification form.

Treatment: Those two days will probably mark the peak of the MF epidemic. Any employee who falsely completes a self-certificate could be guilty of gross misconduct if the employer has a genuine and reasonable belief that the employee was not actually ill. It is not hard to imagine a scenario where an employee who is purportedly away from work ill is caught on television among the merry hordes flying off to an exotic holiday destination or cavorting in Trafalgar Square when he or she is claiming to be at death's door.

Employers should gently remind employees now about the consequences of unauthorised absence and providing false information on self-certificates.

Symptom: Excessive consumption of alcohol with resulting lack of inhibitions at office parties or unofficial celebrations with colleagues. NB: This symptom appears to some extent every year but is expected to be particularly prevalent this year.

Treatment: In the case of an office party arranged and paid for by the company, the normal rules of conduct (including those relating to harassment of any sort) still apply. Employers must remember that they remain liable for harassment committed by an employee at work and that includes office parties. In fact, since the case of the chief constable of Yorkshire police vs Stubbs, it includes even spontaneous get-togethers by staff away from the workplace.

Employees should be reminded of the company's harassment policy and the possible consequences of failing to abide by it. Neither ignorance nor drunkenness is an excuse in the eyes of the law.

Symptom: A variation of the previous symptom manifests itself in the consumption of alcohol or drugs in the workplace during office hours. The most obvious effect of this symptom is the resulting total lack of productivity, not only in respect of the sufferer, but indeed in those healthy colleagues who actually wish to get on with their work (ie, those who are suffering from a disease so rare at this time of the year that medical science has not yet found a name for it).

The most worrying effect of this particular symptom is the danger it poses to health and safety. In all businesses, but particularly where employees work with heavy machinery, there is a clear duty on the employer to protect, as far as reasonably practical, all employees' health and safety while at work.

Treatment: Much more aggressive treatment is required here. A strongly worded memo should be sent to all employees, reminding them that being under the influence of drink or drugs during working hours could result in dismissal.

This is a reminder, in that most contracts of employment will already contain this prohibition. However, one well-known side-effect of MF is total amnesia, particularly in respect of contractual requirements and company rules.

Symptom: Misconduct resulting from (non-alcoholic) high spirits, such as wearing fancy dress to work, clogging the system with festive e-mail, and downloading season's greetings from the Internet.

Treatment: Once again, a gentle admonishment may cause this symptom to subside, although the employer should be prepared to answer to the name of Scrooge.

In the case of Mayor vs Merseyside Passenger Transport Executive a bus driver who had already received a final written warning for wearing a Father Christmas costume to work instead of his uniform was subsequently deemed fairly dismissed when he appeared yet again in festive guise.

Employees who misuse the e-mail or Internet system should be reminded of the company's policy. Employers are just beginning to learn how easy it is for staff to waste time or commit acts of serious misconduct (ie, sexual harassment by e-mail or by accessing pornographic sites on the Internet). Employees suffering from MF are even more prone to doing this.

Be assured that even the Millennium celebrations must come to an end sooner or later, and, if your business survives them this time around, you will have 999 years to prepare for the next epidemic.

The writer is a solicitor at Nicholson Graham & Jones, London