A shock for Santa Claus
December 2007
At 5pm on Christmas Eve, Nicholas is preparing to leave work. It's been a long day and he is
looking forward to putting his feet up to enjoy a large brandy and a mince pie when he gets home.
This year has taken its toll. Playing Santa Claus in the grotto of Adi's Department Store is hard
work, but he loves it; seeing the smile on the children's faces as he shakes their hand makes every
tug on his beard and kick in the shin worthwhile. With his white hair and real beard, he is proud of
his reputation as the most authentic Santa in Manchester.
Leaving the grotto, he waves goodbye to the elves and wishes them a merry Christmas. He has
been asked to pop in to see Mrs Scrooge, the HR Manager, on his way out; he expects it's to collect
his Christmas bonus. To his surprise, Mrs Scrooge hands him a letter. Thinking that it must be a
last minute letter to Santa he opens it immediately. He is shocked to read:
Dear Nicholas,
Our employee records confirm that you turn 65 on 1st July 2008. As this is Adi's' normal retirement
age, your employment with us will terminate on that date. If you wish to do so, you can make a
request to delay your retirement, provided you do so by 31st March 2008. Your request should
state whether you wish to continue to work indefinitely, for a fixed period or until a stated date. We
will consider, but are not obliged to accept, any such request.
Yours,
Mrs E Scrooge, HR Manager
Following the letter of the law
After a miserable Christmas, Nicholas visits a lawyer to see if there is anything he can do. He
doesn't think there is much point in applying to postpone his retirement as Mrs Scrooge has
already made it clear that any such request is pointless.
The lawyer confirms that Adi's has followed the letter of the law; in order to retire him at age 65
under Regulation 30 of the Employment Equality (Age) Regulations 2006, they simply have to give at
least 6 (but not more than 12) months written notice and to inform him of his right to apply to
postpone his retirement.
A glimmer of hope
However, all is not lost. The lawyer tells Nicholas that the High Court is currently considering a case
which might assist. The case, commonly known as 'Heyday', is looking at whether Regulation 30,
which permits compulsory retirement in these circumstances, is 'ultra vires'; that is to say, did the
UK Government go beyond their powers in introducing it? To assist them in deciding the case the
High Court has referred a number of questions to the European Court of Justice (ECJ). TheECJ's
answers are not expected until sometime in 2009.
Whilst the Heyday case is ongoing, the President of the Employment Tribunal has issued a practice
direction confirming that claims relating to Regulation 30 should be stayed pending the outcome of
the Heyday case. This means that Nicholas is able to issue an unfair dissmissal claim, which will
then be postponed until a decision has been reached in the Heyday case.
If the High Court decides that the UK Government did go beyond its powers in introducing
Regulation 30, that section made void, it would be as though it never existed. Ultimately, this would
mean that any unfair dismissal claim made by Nicholas be likely to succeed - the fact that Adi's had
complied with the law as it stood at the time will not assist them in defending his claim.
Ho, Ho, Ho thinks Nicholas - I may have the last laugh after all.
A new job for Twinkle?
Meanwhile, news of Nicholas's predicament has spread throughout Adi's store. Most of the staff
think that the way he has been treated is appalling; rumours of strike are rife. Not everyone thinks
this way though. One of Santa's elves, Twinkle, sees it as an opportunity. He has been looking for
promotion for a few years now and with Nicholas gone, he hopes to make the big red suit his own.
While all the other elves are busy gossiping about Nicholas' retirement, Twinkle fills in an
application form for the now vacant post of Santa Claus. It's not the extra money he wants; it's the
power!
Mrs Scrooge is a little surprised when he hands her the application form. At 18, Twinkle is Santa's
youngest elf. Adi's prides itself on having the most authentic Santa Claus in Manchester. Whilst a
spotty 18 year old with barely a wisp of facial hair makes an acceptable elf, there is no way he can
be Santa. Mrs Scrooge laughs when she tells Twinkle that he is too young to be Santa Claus and
promptly puts his application form into the bin.
A nasty present for Mrs Scrooge
A week later Mrs Scrooge is shocked to receive two age discrimination claims. One brought by
Nicholas and the other brought by Twinkle. She immediately calls her lawyer to see what she
should do. The lawyer tells her that the claim brought by Nicholas will be automatically stayed by
the Employment Tribunal pending the decision in the Heyday case. Although Adi's has followed the
letter of the law in notifying Nicholas of his retirement, his dismissal may ultimately be found to be
unfair and discriminatory and, since they did not follow the three step statutory dismissal
procedure of (1) letter (2) meeting (3) appeal, his compensation could be increased by 10-50%.
The news in relation to Twinkle's claim is more positive; Kenner's should be able to
defend that claim. Whilst refusing to offer a job to a candidate on the grounds of their age is
discriminatory, there is a little known exception within the Employment Equality (Age) Regulations
2006 which allows an employer to discriminate where "possessing a particular characteristic
related to age is a genuine and determining occupational requirement". The traditional image of
Santa Claus is of a jolly, elderly man with a white beard and hair; requiring candidates to possess
those characteristics is not unreasonable if Santa is to be authentic. Indeed, the Government
guidance acknowledges that this exception "could be used for instance for acting jobs". Whilst Mrs
Scrooge should have handled Twinkle's rejection more sensitively, it is unlikely his claim will
succeed.
Santa Claus returns
Having digested the lawyers advice, Mrs Scrooge concludes that she acted too hastily in forcing
Nicholas to retire. Where will she find a more authentic Santa Claus in time for next Christmas? She
offers to postpone his retirement indefinitely and gives him a small pay rise provided he withdraws
his claim. Nicholas happily agrees. It was never about compensation; it was about seeing the
smiles on the children's faces each year when he told them tales about Rudolph, Mrs Claus and the
mischievous elves.
Berkeley Solicitor's Employment team wish you all a Happy and Healthy Festive Season and happy
New Year.
If you would like any more information about this, or related employment matters, please do not
hesitate to contact Adrian Berkeley or Craig Oldale on 0161-371 0011 or by e-mail:
post@claim.co.uk |
