At this time of year I like to take time to reflect on the previous twelve months and recall some of the employment law issues which have emerged. In doing so I invariably started thinking about Santa Claus (bear with me!) and the most important question of the year (obviously) ‘is Santa Claus (Santa) running a sweat shop?’
When you really think about it what do we know about the operation Santa runs? It is shrouded in secrecy. What we do know is that at an unknown location, in an unknown jurisdiction, he controls legions of elves who make millions of toys to a tight deadline. The alarm bells are ringing already. What we need to know is what sort of contract do those elves have? Are they employees or workers? Are they self -employed? Are they on zero hours contracts? Let’s face it, in an economically difficult time even Santa must have cut back. If the elves are on zero hours contracts can they take a second job helping out the tooth fairy? Are any such zero hours contracts in breach of the ban on exclusivity clauses? (introduced by section 153 Small Business, Enterprise and Employment Act 2015)
The more I think about it the more that I worry that things may not be as sparkly at Santa’s workshop as the Christmas films have us believe. I cannot recall much evidence of diversity in the workshop. Is Santa’s work force made up entirely of elves and reindeer? Is the work force sufficiently diverse to allay any fears of discrimination? I don’t expect that anyone can name a Christmas film that features a Christmas workers union. Could Santa have banned the elves and reindeer from joining a union? Surely not.
I am certain that during December, as the pressure mounts, there must be a huge amount of overtime on offer. Is Santa making sure that compulsory and voluntary overtime are taken into account in calculating the elves holiday pay? (Paterson v Castlereagh Borough Council) If an elf is on long term sick leave is Santa carrying forward their holiday without the need for them to ask or to prove that they were unable to take it due to sickness? (Plumb v Print Group Ltd)
Delivery of the toys to the children is, of course, a logistical nightmare. I have read many an article that explains just how fast Santa must travel and how hard those reindeer have to work to get all the presents delivered to the children on time. However, does Santa now realise he needs to pay those reindeer for the time taken to travel to the first house and from the last house as this now counts as working time? (Federacion de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL)
There are too many issues which arise to include a full discussion of them all but there are a couple of other burning questions which I feel need to be asked. Could Rudolph’s red nose be a disability? If so is Santa making reasonable adjustments? What about Elf and Safety? (Sorry, couldn’t resist!)
Finally there has been a rumour circulating that Santa is feeling the strain. The world population is ever increasing and the burden of the extra work in India and China alone must be huge. The word on the rooftops is that he is thinking of outsourcing his workshop so he can concentrate solely on delivery. Perhaps the tooth fairy will diversify? In any event, it occurred to me that there could be a very interesting TUPE issue especially if the elves are laid off seasonally and this occurs immediately before the transfer (Inew Home Improvements Ltd v Hodgkins & Others).
So, Santa, if you are reading this, for Christmas please may I have a full report of how you treat your elves and reindeer? I need to be sure you’re not running a sweat shop.