Ho Ho No? A legal Assessment of Father Christmas as an Employer
Whether you know him as Father Christmas, Santa Clause, Saint Nicholas or Sinterklaas, the benevolently perennial – if seasonally neurotic – gift giver has been operating for centuries and is well loved by pretty much everyone.
It is well known that Santa (which we’ll call him here for ease) resides far away from prying eyes in the depths of the Artic circle where he maintains and operates both a large scale industrial workshop, and a distribution centre which would make any entrepreneur green with envy. As wonderful as this is, the North Pole boasts average December temperatures of -17 degrees Celsius and is predominantly an ocean of constantly shifting ice. It is not hospitable to life or industry, and the erection of any permanent structures on or around it is frankly, a health and safety nightmare. It is assumed Santa’s proclivity with ‘Christmas magic’ can defy this particular physical challenge, though it still doesn’t explain his overdramatic, and exclusionist choice of location.
By virtue of the Convention of the High Seas 1958, the United Nations Convention on the Law of the Sea (UNCLOS), and the doctrine of ‘Mare liberum’, no State may validly purport to subject any part of the North Pole to its jurisdiction. In many ways therefore, Santa can be said to operate both above, and beyond the reach of law (well our law anyway). This freedom from restriction possibly provides an explanation for the odd choice of location. Nevertheless, this festive season, we felt it would be interesting to consider what employment restrictions Santa would face in setting up a similar operation in the United Kingdom.
Countless seasonal sources have made it clear that the presents which Santa delivers (and takes all the credit for) are actually manufactured by his vast elf workforce. Assuming the elves are not elf-employed (sorry), as of 1st April 2020 they would all have a right to written contracts of employment and/or written statements which clearly set out the terms of their employment under s.1 of the Employment Rights Act 1996 which need to have been provided from the first day of their employment. Naturally the content of any such contract is going to be confidential to Santa, his employees and his HR department so we’re going to have to focus on statutory rights from here.
First of all; pay. The National Minimum Wage Age Act 1998 and the National Minimum Age Regulations 2015 provide a minimum hourly rate of pay. The rates applicable to immortal (and presumably) ancient elves is (at time of drafting) £8.72 an hour. This raises a very good initial question. Are the elves paid? All evidence currently available in film and written “Santa lore” would suggest not. The practicalities of employing a workforce of the scale required to manufacture and furnish the world with stocking fillers alone would require Santa to have more petty cash at his disposal than exists in the global economy. Not a great start for Santa. Additionally, as it would make little to no sense to provide an itemised pay slip detailing nothing, Santa is likely also in breach of the Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) Order 2018 too.
What of the way in which the elves work? Well the Working Time Regulations 1998 (“the Regulations”) provides that adults (again we are applying this to immortals elves here so adulthood is assumed) are entitled to a daily rest period of at least 20 minutes if their work exceeds more than six hours (Reg. 10). They are also entitled to at least one day off for every seven days worked (Reg. 12). In addition to this the Regulations provide that a workers working time, including overtime,…shall not exceed an average of 48 hours (Reg. 4) unless the worker agrees with his employer, in writing to the contrary (Reg.5). Reg. 13 also provides full time workers (be they elves or humans) with an entitlement to 28 days paid annual leave a year, this can include bank holidays or not at the employers discretion.
It seems unlikely these regulations have been complied with. Let’s assume Santa has approximately three billion elves working for him (quite a modest estimate considering the population of the word). Santa would have to agree to vary the working week for 8,219,178 elves a day for an entire year in order to satisfy Reg. 5 before the year is out. Nothing would get made. What’s more, Reg. 5(4)(a) would require Santa to maintain his employee’s records appropriately, meaning in just agreements to exclude alone, he would be left with a stack of paper (assuming its 1 sheet of A4 per elf) approximately 4.7 miles high. As for holiday’s: though Santa himself may well only work one day a year, the time constraints in manufacturing gifts would likely be too great on the elves to permit anything other than frantic work at Santa’s assembly line hour after hour.
In terms of elfish welfare more generally; Santa would also be subject to a number of requirements from a variety of statutory instruments ranging, from Health and Safety at Work etc. Act 1974 to the Equality Act 2010. It is well known that Santa imposes a dress code on his workforce – If any and every film representation of the workshop is to be believed, the elves don a green and/or red hooded uniform, usually adorned with bells. It is legally permissible for Santa to impose a dress code on his workers provided it is not discriminatory on the basis of a protected characteristic. Especially if (as I would hope) the uniform has some sort of protective element to it and is provided by Santa in fulfillment of his general duties under s.2 of the Elf and Safety at Work etc. Act 1974 (again, sorry).
So what actions could Santa face if the jurisdiction of the UK extended over his workshop? Well he would likely experience an inspection from The Health and Safety Executive (“HSE”) in fairly quick succession. I’m not saying that a vast industrial workshop located at a literal end of the earth is innately dangerous, however accidents do happen, and the likelihood of their being even one serious work-related incident, injury, or death when you ‘employ’ three billion people is bound to be quite high. Depending on the severity of the incident, Santa could find he has certain licenses to operate being removed, or even face prosecution. Reg. 28 of the Regulations also provides the HSE with the ability to take enforcement action (including the making of ‘improvement notices’) if any breaches of the Regulations is discovered (or reported). The elves would also benefit from the ability to make a claim in the Employment Tribunal, provided they issue proceedings within the relevant limitation period for their complaint. Before taking any litigious action against Santa however, it would be in the elves best interests to source legal advice, as well as commence Early Conciliation with the Advisory, Conciliation and Arbitration Service (ACAS).
You might reasonably wonder if Santa is in breach of so many rules, how would he even be able to set up a workshop in our hypothetical United Kingdom? Why has no one written to Santa to advise him of the plight of his elven workers? The realism of this happening is quite low owing to three simple words; the naughty list. I don’t know about you but I quite like my annual influx of new socks, an annual tradition that would seem unlikely to continue if Santa’s employment practices are called into question. The loss of this regular renewal of footwear alone likely proves sufficient impetus to dissuade any action from being taken by the nations of the world.
If this is however, a risk you are willing to take (or if you’re looking for an address to serve papers) I would encourage you to write to Santa at the official postage address assigned to him by the Canadian Postal Service:
NORTH POLE H0H 0H0
Though I wouldn’t expect much under the tree this year if you do.
Posted on Dec 21st, 2020 by Anthony Heywood