The bearded wanderer could be breaking laws protecting people
from overwork, unfair dismissal and race discrimination laws, said
Ben Doherty, an employment law specialist with Pinsent Masons, the
law firm behind OUT-LAW.COM.
Employers are governed by the European Working Time Directive,
which restricts the number of hours anyone can work. That law could
land Claus in hot water, said Doherty.
"In my mind the elves work full time all year round, and
probably work more than 48 hours per week for the majority of the
year," he said.
Doherty also said that elves could be being exploited if they
are treated as contractors rather than employees by Claus, whose
age is unknown.
"Broadly speaking, employees have the right to greater
protection, for example, they have the right not to be unfairly
dismissed and are also entitled to a redundancy payment if
dismissed for that reason," said Doherty. "This could be relevant
if a particular year saw a downturn in toy demand due to a higher
than normal level of bad children."
"If Santa had to reduce his workforce as a result of the
downturn and the elves were employees, they would be entitled to a
redundancy payment. If they were not employees they would get
nothing," he said.
Claus must also be wary of how he treats requests for flexible
working. "What about the elf who wants to work flexibly so that
they can look after their kids but Santa won't agree because he
needs everybody working hard at this time of year?" said Doherty.
"He can turn down the request, but if he does not deal with it in
accordance with the statutory procedure he can face claims for
breach of the regulations."
"In the wider scheme of things the remedy for that breach is
fairly inconsequential however normally the employee will also
bring a claim for sex discrimination which will not be
inconsequential," said Doherty.
Perhaps most serious of all is the possibility that Claus's
elf-focused employment practices may leave him open to accusations
of race discrimination.
"It may be possible that if he only recruits elves to
manufacturer his toys he will risk claims from other race types,"
said Doherty. "What if a suitably qualified Scottish toy maker
wants to work for Santa but is refused a job because he is not an
elf?"
"I don’t think Santa would succeed with an argument that it was
a genuine occupational requirement that his toy makers be elves,
therefore he may be in some trouble," he said.
The revelations come in a nightmare week for Father Christmas.
He has already been criticised for putting
children's data at risk with opaque data protection policies,
ignoring e-commerce trading laws and
adopting a cavalier approach to health and
safety legislation.
There was no comment from The Grotto at the time of going to
press.
