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:
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!Read More
For the first time, an employment tribunal will decide whether veganism is a ‘philosophical belief’. That will decide whether or not it can be protected under by the discrimination laws (the Equality Act 2010) for the purposes of discrimination, like a religious belief.
Jordi Casamitjana (a vegan) claims that the League Against Cruel Sports dismissed him because he raised concerns that they invested their pension fund in companies that do animal testing.
Jordi has lodged a claim for discrimination citing the ‘philosophical belief’ (which he defines as not eating, wearing or consuming any animal products) in ethical veganism. His employer has refuted these allegations, stating that Jordi’s dismissal was for gross misconduct.
The tribunal has called a hearing in March 2019, to determine whether veganism is a philosophical belief.
What is a philosophical belief?
There is no specific definition of philosophical belief in the discrimination laws. However, caselaw has given guidance, which includes:
1. The belief must be genuinely held.
2. It must be a belief rather than a mere opinion.
3. It must be a fairly serious belief (about an aspect of human life and behaviour).
4. It must be worthy of respect and not conflict with human dignity, nor the fundamental rights of others.
5. It must “have a similar status or cogency to a religious belief”.
6. It need not be shared by others.
7. It may be based on science.
In our view, the crux is whether Jordi’s veganism beliefs have similar status to that of religious beliefs. Some believe that it wont’ this standard because it is likely to be interpreted as a ‘lifestyle/dietary’ belief, rather than a belief which touches all aspects of life, like religions tend to be.
Our view is that Jordi’s veganism belief in ‘not eating, wearing or consuming any animal products’ is capable of being categorised as a belief rather than an opinion or viewpoint. As ‘ethical vegans’ eat a plant-based diet because of beliefs about how humans should treat animals it is likely, in our view, that this part of his case will succeed.
It will be fascinating to see what the tribunal’s decision is in March 2019, as if veganism is classified as a philosophical belief then it could open the floodgates to many different ways of thinking being protected under the Equality Act 2010. Examples found by the tribunals already have included beliefs on climate change.
Laws tend to take on a life of their own once they leave parliament. In bringing in these laws, the government said that it did not share the view that climate change or veganism were covered by the legislation. But the courts have said otherwise about views on climate change, fox hunting and even the “higher purpose” of public service broadcasting.
By Zahid Reza
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