Regardless of the industry, sector or workplace, the run up to Christmas is generally a busy time for everyone. Retail workers can be faced with long hours and hordes of stressed out, last-minute shoppers; postmen and delivery drivers see the number of deliveries they have to safely make throughout December soar; and often as lawyers we can be faced with numerous requests to get deals 'wrapped up' for Christmas or the end of the calendar year.
However as we prepare to put on our out of office and enjoy the festive period, we should spare a thought for Santa and his trusty team of little helpers who are the busiest of all in the lead up to Christmas.
When faced with the daunting tasks of creating billions of presents and delivering these to all of the 'nice' children in the world in one night, it is not unexpected that Santa may, on occasion, be guilty of falling foul of employment law legislation.
With this in mind, rather than leaving out the traditional milk, cookies and carrots for Santa and his reindeer on Christmas Eve (particularly given that it is estimated that he consumes 150 billion calories throughout the night), we have instead conducted a high level review of his employment practices, which he can perhaps look over when things are quieter for him come January. (Of course, Mr Claus, if you require any further information on anything discussed below, please do not hesitate to contact our team of employment law specialists!).
Working Time Directive
Given that Lapland, Santa's HQ, is in Finland, and therefore a Member State of the European Union, Santa is under an obligation to comply with the Working Time Directive. While we do not profess to be experts in Finnish law, the Directive lays down the minimum requirements at an EU level, which we are experienced in applying in the UK. As a result, Finnish law will impose an obligation on employers to ensure that their workers receive at least the following rights:
A limit to weekly working hours
The Directive provides a right to work no more than 48 hours in any given working week, worked out over a 17-week period taking into account all working time over this period. Particularly in the 17 weeks leading up to Christmas, we imagine that there will be no shortage of overtime on offer in the North Pole. As a result, Santa should ensure that the elves are not being pressured to work hours over and above the 48 hour average maximum. That said, Santa does have some options potentially at his disposal to work round these maximum.
Where additional hours over the 48 hour maximum are required, Santa can request that his elves sign an opt-out agreement, to dis-apply the 48-hour maximum. Any such agreement must:
- Be in writing;
- Be made with each individual elf it applies to separately; and
- State that it is dis-applying the 48-hour maximum working week.
While such an agreement can form part of the standard contract of employment, it is best practice to have this signed as a separate document after the employment has started, as otherwise an elf, or indeed any worker, may later seek to argue that they felt pressured into agreeing to the opt out in order to secure the job.
Of course, Santa could seek to negotiate a working practices arrangement with the Elves union, and agree certain derogations from the Working Time rules, which might help out. But if he's not thought this through and already started to negotiate with the Elves, it may be difficult to get this in place quickly, especially as they might all be more focussed on negotiating the difficulty of sourcing all toys needed in time for Christmas Eve.
The Directive also allows provides workers with the right to daily and weekly rest periods, and a minimum daily rest break during any shift which exceeds six hours.
Whilst the daily rest break protection applies to all workers, the elves working in Santa's workshop or any another location where the pattern of work may risk their health and safety (i.e because the work is monotonous), additional provisions should be put in place to ensure that they are given adequate rest breaks. Where such work is involved, Santa should also ensure that he is following any relevant best practice guidance issued by the 'Elf and Safety Executive.
Hopefully Santa has good shift arrangements in place and doesn't look past his obligations regarding night working, which are very different than the regular obligations for day workers. But, what is night time at the North Pole? If Santa has constant daylight he might just get away with it.
While we are not entirely clear on the nature of the agreement between Santa and his reindeer, we expect they are sure to be treated as workers by Santa, given the important role they play in making Christmas for everyone. As a result, we expect Santa will ensure that he thinks about whether they should be entitled to a rest break during their Christmas shift. Given the extremely tight timescales involved, Santa may be pleased to hear that in some special cases, workers can be required to work through their rest periods, or to work a longer shift than they would normally be allowed.
There is a pre-determined list of special case exemptions, and a few of these would seem to apply to this type of work. An exemption will exist where there is either a 'foreseeable surge of activity', or where there is a need for continuity of service. Clearly the Christmas rush is foreseeable, and the continuity of service exemption will apply where the need for continuity could not be entirely satisfied through the arrangement of shift-based working patterns. Given the shortage of magical flying reindeer (and in particular those with very shiny noses to guide the sleigh), the difficulty in arranging an alternative shift rotation is obvious.
Where these exemptions apply, a worker can be asked to forgo their rest break so long as they are later given an equivalent period of compensatory rest (and lots of treats!) to make up for the time lost. Santa should be on good ground provided he gives them their compensatory rest as soon as possible.
Given the seasonal nature of Santa's work, it is entirely probable that he will employ a number of elves on fixed-term contracts over the festive period to provide the much needed extra support. As a result, he should be aware of his obligations under the Fixed-term Work Framework Directive which provides that fixed term employees are entitled to:
- Be treated no less favourably than a comparable permanent employee
- Insist, in certain circumstances, that the fixed-term contract is converted into a permanent one
- Be protected against being subjected to a detriment or dismissal arising out of their exercising of their rights under the regulations.
Therefore, Santa must ensure that his fixed-term elves are provided with the same benefits (for example, the same access to private 'elf care) as the permanently employed elves, and that they get the same rate of pay for their work. Separately, if a fixed-term elf impresses Santa and his contract is extended or renewed on one or more occasion, which results in the elf having been employed for four years or more, then he shall have the right to be regarded as a permanent employee, unless the continued use of a fixed-term contract can be justified by Santa on objective grounds.
Workers or 'elf-employed?
Indeed, without having had the opportunity to meet with Mr Claus and/or any of his team to assess the worker status of his helpers, it may in fact transpire that they are not employees or workers at all, but rather self-employed contractors.
If this is the case, Santa's obligations would become less onerous, with the individuals themselves largely responsible for their own working patterns, and how and when they do the tasks required of them.
This is a particularly fluid area of the law with a great deal of case law and we are seeing more and more challenges to worker status coming before the Tribunals and the European Courts. Where a previously self-employed contractor is found to have worker status, they become entitled to a significant number of employment law rights, as well as potential compensation for any period of time they have been denied their rights. We would therefore advise Santa, as we are advising all of our clients, to conduct a full review of his workforce to ensure that he is quite sure that all individuals carrying out work on his behalf are afforded the correct employment status.
While we do not doubt that Santa is an exemplary employer, and we have certainly not heard of any successful claims from those employed by him, in order to ensure ongoing compliance with his obligations Santa should be aware of the points above, and should conduct regular checks of all of his policies and procedures.