agency workersdata protectiondismissal by employeremployment lawemployment tribunal decisionsemployment tribunalsflexible workinggross misconductinvestigationlanguagematernity leavemisconductpart-time workerspregnancysex discriminationsocial mediatermination of employment

Christmas is here! Why do I say that? Well, partly because I watched Elf last night (and if you’re a big Elf fan, I recommend my blog on Buddy the Elf here) and, also, because I’ve got tickets to visit Friends Fest in London and Love Actually at the cinema within the next week – namely, things you can only get away with in December!

December can be a month of guiltily ‘only having’ one mince pie per sitting (in fear of January), suffering the agony of figuring out what present to get that one person who is impossible to buy for and trying not to buy every penguin-related Christmas decoration at Costco. Oh, just me then?

But my minor festive foibles pale into insignificance when compared to Mr Santa Claus of North Pole fame. To reference the recent Joshua v Ruiz fight, December is Santa’s ring walk and Christmas Eve is his fight (or should that be ‘flight’?) time!

Last year, Santa was struggling with the implementation of the General Data Protection Regulations 2018 (GDPR), considering how to make reasonable adjustments for Rudolph the Red-Nosed Reindeer and stressing over how to handle employees (including Snowball Sugarplum the Seal) trying to eat fellow members of staff (namely, an unfortunate penguin)! Our blog, called “The Santa Clause – Employment Law Troubles in Lapland” can be found here.

This year, however, is Santa’s toughest year yet. He is confronted by employment law changes, social media breaches and enough walruses, penguins, seals and narwhals to fill a documentary by Sir David Attenborough… Let’s help Santa out and save Christmas!

Firstly, Santa has recently been threatened with legal action by a vegetarian elf. Obviously, given their usual diet of mince pies, fish and candy, it is very unusual for an elf to be vegetarian. This particular elf, Eddie, has refused to eat mince pies and believes this constitutes an Unlawful Deduction of Wage against all vegetarians. However, in response, Santa has (correctly) pointed out that modern mince pies don’t usually contain meat and, in fact, the mince pies in question are vegetarian-friendly, so he isn’t placed at a disadvantage.

In any event, Eddie the Elf’s opportunity to bring a claim was effectively halted within a recent Employment Tribunal case which held that vegetarianism isn’t a protected belief under the Equality Act 2010 (albeit, going into the future, a vegan Elf may have a greater change of being treated as having a protected belief…) Thankfully for Santa, Eddie’s secondary complaint of reporting ‘elf and safety breaches’ (sorry!) has no merit either.

Secondly, Mr Claus has been having issues with Wesley the Walrus! Wesley is part of the kitchen team and helps catch fish to feed Santa’s staff. Unfortunately, in August, Wesley wondered into the wrong room within Santa’s grotto and stumbled upon one of Santa’s secret, new gifts for Christmas 2019! Full of excitement, the walrus then posted a cryptic clue about the new toy on his social media platform of choice, Fishbook (sorry!) However, Santa’s Head Elf, Alabaster Snowball (who returns from his controversy within our 2017 Santa Claus blog, found here) is very upset and has brought the matter to Santa’s attention. Could Wesley be in hotter water than he is used to?

Well, this will mainly depend on whether Santa has an airtight social media policy and how ‘cryptic’ or not the post in question was. For example, only the first of the two examples below would be likely to constitute a festive folly and ensure Wesley’s place on Santa’s naughty list:

  • ‘Wowsers! Just seen the brand new, secret toy for Christmas 2019! Didn’t realise that winged, robotic dinosaurs were back in fashion’; or
  • ‘Whoa! The new, secret Christmas 2019 toy looks likely to fly off the shelves…’

Thirdly, Nathan the Narwhal is an agency worker engaged for Santa Claus through ‘Merry Chrimbo Limited’. He claims that he should work the same, equal hours in the Toy Department (putting the holes in Connect 4 sets with his tusk) as the arctic foxes do (doing so with tools) because of the Agency Workers Regulations 2010. However, earlier this year, the Court of Appeal held that whilst agency workers have the right to ‘the same conditions of work’ as a permanent employee, they aren’t entitled to the same number of hours. Therefore, Santa is fairly safe to provide Adrian the Arctic Fox with more hours than Nathan the Narwhal!

Fourthly, we have the tale of Pedro and Phoebe, who are both penguins working in Santa’s Product Testing Division. Yes, perhaps predictably for those who know me well, it simply isn’t possible to have an annual Santa blog without penguins! Phoebe the Penguin recently realised that she was pregnant and they both asked Alabaster Snowball for details of Maternity/Paternity Leave and, also, Shared Parental Leave. Upon realising that Phoebe received better pay (3 additional mince pies and 2 more fish per week) during Maternity Leave than Pedro would on Shared Parental Leave, Pedro claimed discrimination against him on grounds of gender. This was based on the argument that Shared Parental Leave is taken to look after a baby penguin and the only difference between the two of them was gender.

However, following a Court of Appeal case earlier this year, the current law states that Pedro is only able to bring an equal pay claim (rather than a discrimination claim) in this situation and, unfortunately for Pedro, no equal pay claim can be successful because the law includes an exemption providing “special treatment” to females “in connection with pregnancy or childbirth”. Put simply, this means that Pedro cannot make a successful equal pay claim where his comparator is a pregnant female (or a mother engaged in pregnancy/maternity-related leave). Following this, Pedro makes his peace with the situation and, naturally, in keeping with their catchy names, the baby penguin is called Pingu!

And, finally, Santa hasn’t received the seal of approval from Sienna the Seal this year (sorry!) This follows Sienna requesting a longer lunch break from Santa, albeit without any real reason to back up the request. Santa, very reasonably, states that all staff have the same lunch break unless they suffer from a serious health condition. Within the next meeting, Sienna attempts to trap Santa into making damaging comments by asking repeated leading and unreasonable questions and then, at the end of the meeting, in frustration, Sienna revealed that she had been covertly recording the meeting in order to try and show the world how ‘unreasonable’ dear ol’ Santa was! Can Santa take action?

Most likely, yes. Further to Employment Appeal Tribunal cases this year, it is likely that the act of covertly recording a meeting with a manager constitutes an act of misconduct (or, perhaps, gross misconduct) and Sienna the Seal may not complete her fish-based advent calendar prior to receipt of a disciplinary sanction or, even, immediate dismissal.

So, there we have it, Santa has survived a challenging festive period involving pregnant penguins, a confused vegetarian elf, an inquisitive narwhal and a sneaky seal! Christmas is saved for another year! A very Merry Christmas and Happy New Year in advance from everyone at Canter Levin & Berg!