Reasons to choose Wilson Browne
Here at Wilson Browne Solicitors, we appreciate the fact that December is a busy time for those in the North Pole and it seems that Father Christmas is in need for some employment advice.
Father Christmas is the managing director of Snow and Noel Trading Association Ltd (S.A.N.T.A Ltd).
Every day the Employment Team will discuss issues and concerns that may affect his company.
Employing New Elves
December is the biggest month of the year for S.A.N.T.A Ltd and with it comes a heavy recruitment process,
but what does Father Christmas have to think about when employing new elves?:
- He must ensure that the hiring process isn’t discriminatory to elves’ age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
- He must make sure that when he has hired his elves their pay is not different due to their sex otherwise he could be open to an equal pay claim.
- He needs to bear in mind that if he makes an offer of employment to an elf, who accepts it, and then he subsequently tries to withdraw the offer, he could be sued for breach of contract.
- If Father Christmas uses AI in his recruitment process, he must consider the potential risk of bias that comes with it and the potential consequence of a discrimination claim.
If Father Christmas has any queries or questions about the recruitment process, then he should look no further, #TeamEmployment is at hand to help him where he needs.
Elf Employment Contracts
S.A.N.T.A Ltd has many elves, all under different types of contracts of employment which were drafted many years ago when the company was founded by the first Director, Saint Nick.
It is important for Father Christmas to review his elves contracts to ensure they are legally compliant and also meet the business’s needs. Father Christmas may wish to consider:
- Section 1 Statements: These are the most basic form of contracts, simply including terms required by law (such as, pay, location, notice provisions). These are generally reserved for junior employees.
- Basic Employee Contracts: In addition to the terms in the Section 1 Statement, this type of contract will also include terms relating to confidentiality and data protection/IP obligations. These may be best suited for the elves to ensure, upon cessation of their employment, they do not share any confidential information gained during their employment, or contact certain clients from the ‘Good List’.
- Fixed-Term Contracts: These are useful if Father Christmas wishes to employ additional elves for a specific task (e.g. to provide extra support in the Wrapping Department over the Christmas period). A fixed-term contract contains provisions as to how employment will terminate, either by the expiry of a specified fixed term, the completion of a specific task, or the occurrence/non-occurrence of a particular event.
- Senior Employee Contracts: these are suited for supervising elves and usually contain terms relating to restrictive covenants, the ability to summarily dismiss, Board reporting/related obligations and/or resignation from office obligations
Have look tomorrow at Amy Lee’s post to learn more about Working Time Regulations issues that S.A.N.T.A Ltd might face.
Working Time Regulations
With Christmas Day coming around fast, Father Christmas wants all the presents ready to go by their completion date (24th December 2023).
However, Father Christmas must ensure that he adheres to the Working Time Regulations in relation to the shifts his elves are working in order to meet this deadline. To name a few, the elves at S.A.N.T.A Ltd must:
- Have an uninterrupted rest break of at least 20 minutes if the elves shifts are more than 6 hours long. This rest break does not have to be taken at their present-making-station;
- Have 11 hours of uninterrupted rest each day and between each shift;
- Have 24 hours of uninterrupted reast each week (or 48 hours each fortnight);
- Not exceed working 48 hours per week (unless exempt).
If Father Christmas wishes for his elves to work more than 48 hours per week, he must ensure he obtains the elves agreement to opt-out. An opt-out agreement can last for a fixed period over the Christmas season, or it can last indefinitely, but S.A.N.T.A Ltd must keep records showing which workers have opted out covering the last 2 years. Check Tom Charteress’ post tomorrow to see the guidance on grievances.
Grievances In The North Pole
Unfortunately for Father Christmas everything at the North Pole isn’t always sunshine and rainbows and S.A.N.T.A Ltd now must deal with a workplace grievance. Syllabub Embercrystals the elf and his colleague Nougat Scarletbubbles have had a workplace disagreement. Nougat is accusing Syallabub of spilling a gingerbread hot chocolate all over his workstation and therefore preventing him from working properly.
What must Father Christmas do?:
- Father Christmas must initially consider whether the issue can be settled informally.
- If Nougat raises a grievance in writing, Father Christmas will need to acknowledge it in writing.
- Conduct an initial meeting – this is really just to check that Nougat wants to follow the formal grievance procedure and to check any aspects of the grievance and scope of the investigation.
- Conduct an investigation – this is a fact-finding process and Father Christmas will need to ensure that there is an investigation plan and he will need to consider confidentiality.
- Prepare an investigation report – this will comprise of an introduction, a summary of the process, summary of the findings, conclusion and an appendix of any relevant documents and evidence.
- Conduct a grievance hearing with Nougat.
- Inform Nougat of the decision without unreasonable delay.
- Give Nougat an opportunity to appeal against the decision.
It’s important that Father Christmas follows these few steps, but if he does have any further questions, then he should contact #TeamEmployment here at Wilson Browne Solicitors. See what Joseph Weston has to say about sickness absence tomorrow!
Elf Sickness Absence
S.A.N.T.A Ltd is not immune to the risk of the dreaded elven flu and it seems a few of the elves have come down with it and are too poorly to work. But what issues must Father Christmas consider when an elf is off sick?:
- The elves’ entitlement to statutory sick pay and contractual sick pay – Father Christmas will need to check his elf employee handbook and contracts of employment here!
- The reason for absence and whether it is genuine and the elves are really sick.
- Whether the sickness is because of a workplace issue, has there been an accident at Father Christmas’ workshop?
- If the absence coincides with any periods of holiday (it is Christmas time afterall!)
- Whether the absence is related to a disability and should Father Christmas make reasonable adjustments for the elves?
- Consider whether any of the elves will be eligible for ill-health retirement or permanent health insurance.
- If dismissal is appropriate and if it is, ensure a fair procedure is followed. He won’t want any Elves raising a claim for unfair dismissal!
- To maintain appropriate contact with the elves as well as keep up to date on the medical condition.
The rules around sickness can be confusing at times so if S.A.N.T.A Ltd needs further advice then the Employment Law team are here to help. Have a look at Amy Lee’s post tomorrow to learn about poor performance!
It seems that Father Christmas has another headache.
An elf called Cinnamon Icicleberry is far behind her target for toy making and the quality of her present wrapping is not up to scratch. Father Christmas wants to know what the main stages of a formal capability process are:
- Initially, follow S.A.N.T.A Ltd’s written capability procedure. This should be within the ‘Elf Staff Handbook’ but if it isn’t, and there isn’t one in place, Father Christmas should follow the process below.
- Conduct an initial assessment or investigation into Cinnamon’s performance and allow her the opportunity to respond to the findings.
- Invite Cinnamon to a capability meeting – this will be to clarify the standard that is expected of her, allow her to ask questions, establish possible reasons for her poor performance, determine what can be done to improve her performance (training, etc), set targets and a timescale.
- If Father Christmas continues to be disappointed with Cinnamon’s performance, then warnings can be issued, first verbally and then written.
- A further review period should be implemented, further capability meetings and final warnings.
- Appeals – Cinnamon has the right to appeal each decision or warning given
An alternative could just be to offer Cinnamon a settlement to avoid the need for the formal capability procedure, but this will be at S.A.N.T.A Ltd’s discretion. If Father Christmas requires any further advice on the capability process or settlement agreements then he should of course contact the Employment Team at Wilson Browne Solicitors.
See what Tom Charteress has to say about Health (Elf) and Safety tomorrow!
Health (Elf) and Safety
Building toys in a buzzing workshop can pose its dangers.
As managing director of S.A.N.T.A Ltd, Father Christmas needs to know his obligations and when he could be held liable for failures in Health (Elf) and Safety:
- Father Christmas is responsible for ensuring the health and safety of his elves insofar as it is reasonably practicable.
- He must assess and review the work-related risk faced by his elves affected by S.A.N.T.A Ltd’s activities.
- He must make and implement arrangements for the proper planning, organisation, control, monitoring and review of the preventive and protected measures.
- He must audit the adequacy of these procedures.
- At least one person, preferably a supervising elf, must be appointed to implement the measures needed to comply with health and safety laws.
- He must provide his elves with understandable and relevant training of the risks they may face while working for S.A.N.T.A Ltd, as well as the measures in place to control them.
- Father Christmas could be held criminally liable if S.A.N.T.A Ltd is found guilty of a health and safety offence or if the offence was committed with consent from himself or was down to his negligence.
A breach of any of the above obligations will leave S.A.N.T.A Ltd open to a range of sanctions since they are criminal offences. If Father Christmas has any further concerns around health and safety in the workplace then the Employment would be more than happy to advise him. Tune in tomorrow to see Joseph Weston talk about changing terms and conditions.
Changing Terms and Conditions
As we draw nearer to the big day, Father Christmas wants to be able to change the terms of his elves’ employment contracts.
He wants to be able to increase the elves’ working hours in the run up to Christmas Day, can this be done?:
- It may well be that Father Christmas has put in flexibility clauses into the elves’ contracts. This means that if it’s specifically expressed in the employment contract that Father Christmas can change the elves’ working hours, he should be able to do this.
- There could be a general flexibility clause in the contract which tries to give S.A.N.T.A Ltd a general right to make changes to any term of the contract but these are rarely enforceable.
- If it turns out that there is no provision in the contract to vary its terms, then Father Christmas may deal with it in one of the following ways: by an express agreement; implied agreement to the change; unilateral imposition of the change; terminating employment and offering re-engagement on the new terms.
The elves may decide that they aren’t happy with the new terms and therefore ‘work under protest’. If this turns out to be the case and if there are any issues on the above them Father Christmas should contact the Employment team at Wilson Browne Solicitors for some further advice. See what Amy Lee has to say about vicarious liability tomorrow!
Like many other businesses, S.A.N.T.A Ltd had their Christmas Party last night at the local pub in Lapland: The Tinsel Tavern.
During the evening, and after a few eggnogs, a male elf made some inappropriate comments to his female elf colleague. S.A.N.T.A Ltd should be aware that, as the employer of the male elf, it may be vicariously liable for the harassment. This is because:
- Vicarious liability may arise even if the worker was off duty and occurred outside of work hours.
- The social gathering of the elves for their Christmas party may be considered an extension of their employment, and S.A.N.T.A Ltd may be found to be vicariously liable for the male elf’s acts.
Tomorrow Tom Charteress will be advising on a final issue for Father Christmas – Redundancy!
At the end of the Christmas period, it may be necessary for Father Christmas to make some redundancies.
Some of the elves at S.A.N.T.A Ltd have been working in the North Pole for quite a few years, whether that’s tending to the Reindeer in the summertime or building all the toys in the winter. So, what if Mr C finds that he has too many elves and needs to make job cuts? Father Christmas will need to do the following:
- Warn and Consult the elves – by this we mean that Father Christmas must let the elves know about the risk of redundancy and consult with them (consult the Elf Trade Unions if necessary).
- Adopt a fair basis on which to select redundancy – Father Christmas can do this by identifying an appropriate pool and developing a fair selection criteria.
- Consider alternative employment – Father Christmas must search for alternative employment for the elves, whether it’s working elsewhere at the North Pole (perhaps tending to the reindeer?), and if suitable, offer it.
If Father Christmas follows these few steps, he should be safe from unfair dismissal claims from the elves, but if not, he ought to contact the Employment team here at Wilson Browne Solicitors.
Merry Christmas everyone!