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See Yule in court?

16 December 2020

Santa deserves some presents for Christmas too. Here’s our own offering - some timely advice on how UK employment laws might impact his business…

Today’s legal landscape is much tougher than it was when Santa set up his gift-distribution service a couple of millennia ago. A ramshackle workshop with elves toiling on zero-hours contracts might have passed muster back in the day, but laws such as the Working Time Regulations (WTR), General Data Protection Regulation (GDPR) and Equality Act (EqA) have major implications for modern employers.

What’s more, although much of this regulation originated from European Union law, Santa can’t rely on Brexit and the end of the transition period to save him. The UK’s employment law regime is likely to remain broadly the same for some time, even after we’ve severed links with the EU.

We appreciate it can be tricky for family-run businesses to stay on top of the latest legal position, but in a highly regulated and increasingly litigious age it’s essential. We’ve set out below some issues that Santa should add to his list if he wants to avoid the pain of legal proceedings aggravating his Boxing Day hangover.  

Disability discrimination

Bullying and harassment is endemic throughout the FC Corporation, according to former employee Rudolph Rnr. He recalls being marginalised by colleagues who insulted and refused to socialise with him. Worryingly for Santa, the bullying appears to have been related to Rudolph’s facial disfigurement.

Severe disfigurement is a “deemed” disability for the purposes of the EqA’s provisions on disability discrimination. This means there’s no need for an employee such as Rudolph to show there is a substantial adverse effect on his ability to carry out normal day-to-day activities. Disfigurements include skin conditions such as rhinophyma, a form of phymatous rosacea, which makes the nose red and swollen. According to the EqA guidance, when determining whether a disfigurement is “severe”, the nature, size and prominence is relevant, as is location (e.g. on the face).

Rudolph would therefore appear to be a clear victim of workplace disability harassment. His colleagues’ unwanted conduct, related to his disability, had “the purpose or effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment” for him. Santa will be vicariously liable for his employees’ unlawful, discriminatory acts, unless he’s taken “all reasonable steps” to prevent them. He should draw up a “dignity at work” policy and take steps to implement it - such as publicising the policy, training staff in discrimination and harassment issues and taking disciplinary action against offenders. 

Health and safety

Many businesses find themselves in legacy premises at locations that are no longer suitable for their operations. Whatever attractions the North Pole may have once had as a base, it’s nowadays unlikely to be the most appropriate logistical hub for a global manufacturing and distribution conglomerate. And the setting has some obvious disadvantages for employees.   

There’s been no daylight at the North Pole since October. During December, the busiest time of the year for the FC Corporation, all work is done in darkness. Night work is known to increase the risk of various health conditions, including sleep disorders, metabolic disruption, susceptibility to disease, heart disease, diabetes and cancer. It also exacerbates the risk of accidents because fatigued workers have decreased concentration and slower reactions. Employers are responsible for taking reasonable steps to ensure the health and safety of their employees and others who might be affected by their actions. What measures is Santa taking to mitigate these effects and safeguard workers?

In addition, what are conditions like in Santa’s workshops? Are they adequately heated for Arctic temperatures? These average -20°C at the North Pole in December. While health and safety laws don’t specify maximum and minimum temperatures, they do stipulate that the temperature inside buildings should be reasonable during working hours.

More prosaically, it’s far from clear that the FC Corporation is complying with other basic health and safety obligations to staff. Are they, for example, providing manual handling training, given the sheer number of toys that need shifting to meet worldwide demand? It’s worth noting the recent High Court ruling that key health and safety protections should extend to “workers”, a wider category than just employees. That means they’re owed to all additional seasonal helpers who are not genuinely self-employed.

Given it’s his busiest time of year, Santa is likely to want his workers to put in lots of overtime in the run-up to Christmas. The WTR limit maximum average weekly working hours (including overtime) to 48 hours. This is normally averaged over a 17-week reference period, but this can be increased for “objective or technical reasons or reasons concerning the organisation of work” to a maximum of 52 weeks. The seasonal fluctuation in demand experienced by the FC Corporation is probably a sufficient reason, but Santa still needs to agree a workforce or collective agreement with his staff to vary the reference period and increase average working hours over the Christmas period.

If Santa can’t agree a workforce or collective agreement, it is still arguable that his staff are “special case” workers under the WTR because their work involves “a foreseeable surge of activity” at Christmas. If so, the reference period for calculating average working time is automatically extended from 17 to 26 weeks. It also means that the limits on night work and entitlement to rest breaks and rest periods don’t apply to those workers, although they should be given compensatory rest wherever possible.

Data protection

With children across the globe writing to Santa with their wish lists and supplying addresses for delivery, the FC Corporation is processing large quantities of personal data. Hopefully Santa has got his head around the GDPR rules about lawful processing, but here are some questions for him to consider. Is he processing the data lawfully, fairly and transparently? Is the data limited to what is necessary for his gift-supplying purpose? Does he ensure the data is accurate and kept up to date? Is it stored with appropriate security measures against accidental loss, destruction and damage? And is it kept for no longer than is necessary?

Advice in the (saint) nick of time?

Despite the pressing legal concerns outlined above, it’s worth remembering that Santa’s business has survived for thousands of years by moving with the times. Previously operating under the trading name of “St Nicholas” – not to be confused with Marks and Spencer’s St Michael - he was the patron saint of sailors and pawnbrokers, as well as children.

Having hived off certain peripheral parts of his business to focus on the core activity of gift-delivery, let’s hope Santa can demonstrate similar agility to adapt to 21st century employment laws. Or else he won’t be having a very merry Christmas or happy new year…   

 

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