We saw this job vacancy on the internet. You might ask what is wrong with seeking a bearded retiree to a deliver parcels by sleigh and be paid in mince pies and sherry – after all this has been the protocol for centuries!
Well, it’s bound to lead to employment claims for this recruiter. Let’s take it apart:
Discrimination
The Equality Act requires a recruiter to consider a wide enough pool of potential applicants to avoid discrimination.
This advertisement deters candidates who are young (“white hair” and “retired”) and female (“beard”). Age and sex are “protected characteristics” and cannot be used as a criterion for selection. Why shouldn’t a young female applicant, who can drive a sleigh etc, perform the job?
Using the word “active” implies that only able-bodied candidates are suitable, which again deters those with disabilities.
If Santa is diabetic there is no reason why mince pies and sherry could not be substituted with gin and sugar free tonic and salted peanuts! This may be an adjustment the employer should consider in order to avoid employment claims.
But wait! Muslims, Presbyterians and Quakers are unlikely to be open to being paid in alcoholic drinks. This is indirect discrimination (a one-size fits all policy that affects some religions more than others).
But this is Santa we’re talking about. Santa must be an older man, that’s what the role requires.
Or, in legal terms, could the direct discrimination be justified by the ‘genuine occupational requirement’ defence?
It depends on whether Santa is performing a role or playing a role. If only people with a particular protected characteristic can do the job (the usual example is a male or white actor needed for a white male role) then these requirements are needed. But there is no such requirement to perform the role of delivering parcels.
If Santa is playing a role, then the ad is fine from the discrimination angle. But as we all know, Santa is real and the ad falls foul and could lead to employment claims.
Excluding candidates based on protected characteristics can be costly – tribunal claims can be bought by anyone who sees a job ad. All this would lead to claims of a few thousand pounds in injury to feelings per applicant who brings a claim, plus some compensation for the chance of losing out on the job by otherwise qualified applicants.
National Minimum Wage and Working Time Reg claims
Payment in sherry rather than money is a real concern, because workers should receive the NMW in the form of cash, rather than benefits in kind (regulation 10(f) of the NMW Regulations 2015). Santa must get at least £187.92 for the 24 hour shift.
Obviously, deliveries must take place overnight, otherwise the world’s little boys and girls would see them take place and the magic of Christmas would be spoilt. However the employer must ensure that no night worker doing work involving special hazards or heavy physical strain works for more than eight hours in any day (reg 6(7) of the WTR). In our view, carrying loaded sacks onto slippery roofs counts under this regulation. Therefore the employer should be looking for several candidates to cover the shift.
Under reg 7(1) Santa is entitled to a free health assessment. If that shows that the cold conditions would be bad for him (or her) then deliveries would have to take place in the daytime, on Boxing Day (reg 7(6)). Regardless of the health check results, Santa would have to get the deliveries done in 13 hours to get the 11 hours’ uninterrupted rest per day given by regulation 10.
Other WTR regulations allow Santa regular rest breaks because the work is ‘monotonous’. Santa should certainly take opportunities to sit down in armchairs by the fireside.
Holiday entitlement accrues, of course, as Santa rides around the world’s rooftops. Parents should put an extra 12.07% of sherry in the glass and leave a note to explain that the extra sherry represents rolled-up holiday pay.
There is no legal entitlement to extra pay for working on a bank holiday.
Could Santa be self-employed? This is an uncertain area for employment claims and we’re sure many Christmases will go by before this is area becomes clear. As there are no hours mentioned in the ad, we presume Santa will be on a zero-hours contract, which indicates they are likely to be a worker rather than an employee.
Neither the NMW nor WTR apply to self-employed people. If so, ignore everything in this section!
Health and safety
Anyone thinking of giving alcohol to staff needs to know that they may end up sharing liability for any alcohol-related sleighing accidents that take place.
In fact, Santa’s job is a health and safety nightmare from the employment claims perspective. Chimneys may look roomy at the top but the health and safety people don’t let children or grown-ups go up or down chimneys these days.And we’re not even going to discuss compliance with the Work at Height Regulations 2005!
Merry Christmas from Hatton James Legal!