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Question 1

During the busy Christmas period, Father Christmas tends to hire more elves to help him deal with the increase in toy making at the North Pole.

Last year, a number of elves hired by Father Christmas were off work sick; as a result, Father Christmas nearly missed his deadline to deliver all the presents on time.

This year, Father Christmas wants to ensure that this situation doesn’t happen again. He wants to ask the elves how many days they have been off work sick in the last year in order to sift through those pretending to be sick. Father Christmas also wants any potential elves to answer medical questions when applying for their role.

Is Father Christmas able to request this information?

A. Yes – Father Christmas is merely protecting his business from individuals who would potentially take too much sick leave or pretend to be sick to take time off work.

B. No – Father Christmas risks the possibilities of claims being raised.

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B is the Correct Answer – No, Father Christmas risks the possibilities of claims being raised.

Why?

Asking candidates to demonstrate a good sickness record may amount to discrimination against disabled people. Apart from in certain limited circumstances, it is unlawful to ask questions about health or disability before offering a job - again this can amount to discrimination.

Question 2

One of Father Christmas’s longest serving elves, Pinky, has been spending time with the Grinch during and outside of work. Father Christmas fears that the Grinch will be a bad influence over Pinky and worries that her performance at work will drop. Father Christmas does nothing in this instance.

In preparation for Father Christmas’s Christmas Day delivery, all the elves were busy helping Father Christmas pack his sleigh. Just before Father Christmas was to leave, he heard a noise from the back of the sleigh and caught Pinky, trying to take one of the presents – he knew he should have had an informal chat with Pinky about the Grinch last week.

What should Father Christmas do about Pinky?

A. Dismiss Pinky there and then; she has been caught red-handed by Father Christmas.

B. Although Father Christmas has caught Pinky attempting to steal a present, Father Christmas should follow the investigation and disciplinary procedure set out in the staff handbook. Father Christmas should not decide to terminate Pinky’s employment until the process has been followed.

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B is the Correct Answer - Although Father Christmas has caught Pinky attempting to steal a present, Father Christmas should follow the investigation and disciplinary procedure set out in the staff handbook. Father Christmas should not decide to terminate Pinky's employment until the process has been followed.

Why?

Even where an employee’s behaving in a way that could amount to gross misconduct and justify summarily dismissing them, the employer still has to conduct some form of investigation and disciplinary process (ACAS Code) to establish facts and allow the employee to explain before making a decision to dismiss.

Failure to follow such a procedure, especially where an employee has 2 years’ continuous service or more, may result in the employee’s dismissal being found to be unfair.

Question 3

Kim is on a night out along with several colleagues including Kevin, Harry, Marv and Heather. At the end of the evening, Kim was approached by Marv, Senior Manager of Toy Operations who asked Kim whether she wanted to have a kiss under the mistletoe and to come back to his for a night cap.

Kim felt very awkward and offended; Marv knew that Kim was married. Kim declined the proposition and left the party immediately. When Kim left she heard Marv mumble an insult under his breathe.

The day after the party Kim felt very upset about what had happened, not knowing what to do Kim approached Father Christmas to discuss Marv’s behaviour.

What should Father Christmas do following Kim’s complaint about Marv’s behaviour?

A. Do nothing – Marv was clearly just having a bit of ‘banter’.

B. Father Christmas should start a disciplinary against Marv as a warning that he takes the matter seriously.

C. Father Christmas should record the complaint made by Kim and investigate Marv’s conduct.

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C is the Correct Answer - Father Christmas should record the complaint made by Kim and investigate Marv’s conduct.

Why?

The complaint should be recorded and ensure that the matter is investigated. During the investigation process, Marv should be asked his version of events and what happened before Father Christmas comes to any conclusions.

When investigating the complaint, witnesses at the event should be questioned to see if they may be able to give a statement.

Question 4

Stickles is sick of working long hours over the Christmas period. He is also worried about his reindeer, Walter as he has to leave Walter alone in the house for long periods during the day. Stickles knew that some of the female employees, for example Emily, worked part-time and were able to leave early to collect their children from school.

Stickles decided to submit a flexible working request form to his line manager Papa Elf. The request asked if Buddy could leave work early each day to look after Walter.

Papa Elf is outraged and shows Father Christmas the flexible working request, what can be done?

A. Father Christmas will need to decide whether to reject or accept the request. If Father Christmas rejects the request, he can only reject it for one of the eight prescribed business reasons.

B. Dismiss Stickles for making such a request.

C. Refuse the request, Stickles should not have made such a request, to look after his reindeer.

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A is the Correct Answer - Father Christmas will need to decide whether to reject or accept the request. If Father Christmas rejects the request, he can only reject it for one of the eight prescribed business reasons.

Why?

The statutory right to request flexible working came into force on 30 June 2014. All employees with at least 26 weeks’ continuous employment can make a request for flexible working under the statutory procedure.

An employer has a duty to consider the request and can only reject it for one of eight prescribed business reasons. Previously, only parents were able to request flexible working however, this has been extended to allow all staff to make such a request.

Question 5

For the last 3 years, Father Christmas has had an ever-increasing workload which has led to him using consultants to help him review the ‘Naughty or Nice’ list. The consultants are allowed to take time off, but they do not receive holiday pay.

Father Christmas decides to scale back the use of consultants and train the elves to help him review the list. He therefore decides to terminate the consultancy agreements.

Some of the consultants are now saying that they are owed money for unpaid holidays. Father Christmas does not agree but is worried they may bring a claim at a North Pole Employment Tribunal. If Father Christmas does owe each consultant holiday pay, he will be placed in a difficult financial position which may lead to him shutting down the toy factory.

Do you think the consultants have a claim?

A. No. Only employees are entitled to holiday pay.

B. Yes, if the consultants can show they are classed as workers, then Father Christmas will be required to make payment for any unpaid holiday and any holiday they have been discouraged from taking because they would not have got paid.

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B is the Correct Answer - Yes, if the consultants can show they are classed as workers, then Father Christmas will be required to make payment for any unpaid holiday and any holiday they have been discouraged from taking because they would not have got paid.

Why?

In King v The Sash Window Workshop Ltd, the European Court of Justice decided that consultants who are properly categorised as workers, rather than genuinely self-employed, will be entitled to payment for any unpaid holiday they have taken and any holiday they have been discouraged from taking because they wouldn’t have been paid for it.

Therefore, there could be potential for a claim to be brought if the consultants can prove they are categorised as workers.

Question 6

Father Christmas engaged Jack as a toy maker in the North Pole factory. Jack has worked at the factory for approximately seven years under an agreement which clearly identifies him as a ‘self-employed toy maker’.

While he has worked at the North Pole factory he has been governed by the terms of the ‘North Pole Manual’ which stated:

• Staff would be expected to work a minimum of 50 hours per week during busy periods, though Father Christmas did inform Jack that there was no guarantee of work.

• That a quota of toys would need to be made each day.

• Everyone is required to wear the toy factory’s custom uniform only.

• Jack would need to deliver toys using a factory owned reindeer and sleigh, displaying the factory logo on the side.

Jack was required to provide his own magic, materials and tools for making the toys and was unable to swap toy assignments with other elves. Jack raised invoices and personally accounted for his tax and North Pole insurance.

Jack asked if he could take a week off to attend the Frost Festival to see ‘The Mistletoes’. Father Christmas was outraged that he requested time off during December (peak toy making season) and terminated Jack’s arrangement.

Jack is now challenging his status as a ‘self-employed toy maker’ and has brought a claim for unfair dismissal, unpaid holiday pay and unlawful deduction from wages. The North Pole Employment Tribunal have made their decision, what did they decide?

A. Jack is an employee

B. Jack is a worker

C. Jack is genuinely self-employed

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B is the Correct Answer - Jack is a worker.

Why?

The question of whether an individual is classed as an employee, worker or is self-employed is not easy.

Worker status is defined under section 230 (3) of the Employment Rights Act 1996 as an individual engaged under an agreement ‘whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual’.

Question 7

Bernard, a newly-hired employee based in Father Christmas’s Lapland toy factory, recently attended the Lapland Festival of Street Food. At the festival, Bernard was inspired by a group of individuals led by Fred Jingle. Jingle spoke about the negative effect of consumerism and the fact that it detracted from the real reason of Christmas.

Upon his return from the Festival, Bernard began handing out leaflets trying to spread Jingle’s message. He replaced all stocking fillers with lumps of coal and oranges. Father Christmas was less than impressed with what Bernard had done and gave Bernard his notice.

Bernard now believes that he was dismissed on grounds of discrimination, religion or belief and makes a complaint. What should Father Christmas do?

A. No discrimination, Father Christmas does not have to do anything – this ideology is not a ‘religion or belief’ protected by the Equality Act 2010.

B. Bernard is expected to spread joy, happiness and the spirit of Christmas when working for Father Christmas. Bernard no longer spreads the spirit of Christmas, meaning he no longer meets a genuine occupational requirement of his job role and Father Christmas can get rid of Bernard.

C. Bernard’s belief in this ideology does not entitle him to impose his beliefs onto his co-workers or behave in a way which would interfere with their fundamental rights.

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B is the Correct Answer - Bernard is expected to spread joy, happiness and the spirit of Christmas when working for Father Christmas. Bernard no longer spreads the spirit of Christmas, meaning he no longer meets a genuine occupational requirement of his job role and Father Christmas can get rid of Bernard.

Why?

Through process of elimination… A is incorrect as it is likely that Bernard’s political philosophy is a belief which would be protected by the Equality Act 2010 as it has a sufficient level of cogency, seriousness, cohesion and importance.

C is also incorrect because although Bernard does have a protected belief it does not entitle him to manifest that belief at work in an unacceptable manner.

Question 8

Dancer has just been employed as a ‘Senior Toy Maker’ at Father Christmas’s factory. In accordance with her contract of employment, Dancer is currently on a probation period (6 months). Dancer is aware that she has work at 5am the next day and plans on having an early night. However, Dancer is convinced to go out after work with Rudolph, Blitzen and Prancer.

Dancer is up until 3am drinking mulled wine and shots of fizzy frost. Dancer wakes up to go to work and realises that she is still drunk. Dancer needs the money so decides to go to work and work her 10-hour shift.

Dancer’s line manager Vixen smells alcohol on Dancer and as she is responsible for using heavy machinery sends Dancer home. He realises that allowing Dancer to work in an intoxicated state and using heavy machinery could pose a health and safety risk to herself and other colleagues.

Vixen informs Father Christmas of what has happened. Father Christmas is disappointed as he has already spoken with Vixen about Dancer’s performance in work. Father Christmas wants to dismiss Dancer. Can he do this?

A. No, he must follow a disciplinary procedure before he can dismiss Dancer. If he does not do this, Dancer will be able to bring a claim for unfair dismissal.

B. Father Christmas should do nothing. It’s Christmas and employees are just out enjoying themsELVES.

C. Yes, Father Christmas can dismiss Dancer without following the disciplinary procedure on the basis that she has failed her probation period.

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C is the Correct Answer - Yes, Father Christmas can dismiss Dancer without following the disciplinary procedure on the basis that she has failed her probation period.

Why?

Dancer does not have 2 years’ continuous service and therefore is not eligible to bring a claim for unfair dismissal. As Dancer has less than two years’ service, she can be dismissed for any reason and Santa does not have to follow a reasonable process to dismiss her.

Santa should also think of the repercussions, if he does not take this matter seriously, other colleagues may start doing the same.

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