Thank you to all of our readers who took part in the 2004 Christmas Quiz. Our congratulations go to Rhona Morrison at AEGON UK plc who was drawn at random from all those entrants who scored 20 or more correct answers. Well done Rhona!!

Q1: Can a whistle blowing claim succeed if the disclosure is motivated principally by the individual’s personal gain?

A: No
B: Yes
C: Only if half of the compensation is donated to Santa’s reindeer retirement fund

Correct answer A - The case of Street v Derbyshire Unemployed Workers' Centre [2004] has limited the scope of the decision in Parkins v Sodexho to the welcome relief of employers. In that case, the Court of Appeal held that a worker's disclosures alleging wrongdoing by her manager were not protected disclosures as she had not made them in good faith but out of personal antagonism towards the manager. The Court held that a disclosure will not be made in good faith if an ulterior motive was the dominant or predominant purpose of making it. Where a statement is made with reasonable belief in its truth, it does not necessarily follow that it will be made in good faith. The purpose of the whistle blowing legislation is not to allow people to advance personal grudges, but to protect those who make certain disclosures of information in the public domain.

Q2: Santa’s worried. He’s realized that for many years now there has been a discrepancy in the amount of pay being given to male and female elves. He thinks several female elves are going to bring equal pay claims, and is worried about the financial impact of this on his Christmas budget. What is the maximum amount of back pay the female elves could claim if successful in their equal pay claims?

A: Unlimited back pay from the date that they commenced their employment with Mr Claus
B: 6 years’ back pay – that is for 6 years before the date proceedings were instituted
C: 4 years’ back pay – that is for 4 years before the date that the judgment in the case is given

Correct answer B - Remedies for equal pay include not only equalising contractual terms for the future but awarding compensation of arrears of pay for up to six years before the date proceedings were instituted.

Q3: Twinkle (the Health & Safety elf) reports to his line manager, Sparkle, that Santa’s new toy making machinery is not compliant with existing Health & Safety regulations. Following some heated arguments, Twinkle lodges a formal complaint with the regional Health & Safety Executive. Sparkle finds out and dismisses Twinkle on the spot. What is the minimum period of continuous employment that Twinkle must have worked in order to claim unfair dismissal in these circumstances?

A: One year
B: 30 Christmas’s plus a secondment with the Easter bunny
C: No minimum period of employment will apply

Correct answer C - No qualifying period of continuous employment is required for complaints of unfair dismissal where the reason for the dismissal was based on, or related to, an employee’s protected disclosure or assertion of health and safety protection rights. Further, if the employee can establish that the reason for his dismissal is because he made a protected disclosure and/or asserted his health and safety protection rights, such dismissal will be automatically unfair.

Q4: Sandra’s boss is homophobic. One weekend she sees Sandra hugging a woman in the street and holding hands with her. Sandra’s boss incorrectly concludes that Sandra must be a lesbian and that the woman she was hugging must be her girlfriend. Sandra’s boss sacks her the following week as she does not want to employ lesbians. In actual fact, Sandra is heterosexual and had just met up with her cousin whom she had not seen for five years and was giving her a hug when her boss saw her. Can Sandra bring a claim for discrimination on the grounds of sexual orientation under the Employment Equality (Sexual Orientation) Regulations 2003?

A: No – because she is heterosexual
B: Yes – as this amounts to discrimination on the grounds of perceived sexual orientation
C: Yes – but only if she can prove that she would have greeted a male cousin in the same way

Correct answer B - Direct discrimination on grounds of sexual orientation can include discrimination based on a perception of sexual orientation regardless of whether the perception is right or wrong. Sandra would be able to bring a claim even though the discrimination was based on an incorrect assumption concerning her sexual orientation.

Q5: Which of the following does not fall within the definition of a religion or belief for the purposes of the Employment Equality (Religion or Belief) Regulations 2003?

A: The Divine Light Zentrum
B: Zoroastrianism
C: Being the founder member of the Kylie Minogue fan club

Correct answer C - The definition of religion is a broad one which is in line with the freedom of religion guaranteed by Article 9 of the European Convention of Human Rights. This includes religions which are widely recognised in the UK such as Christianity, Islam, Hinduism, Judaism, Buddhism, Sikhism, Rastafarism, Baha’is, Zoroastrians and Jains. The European Court of Human Rights has recognised other collective religions including the Divine Light Zentrum and the Church of Scientology. To constitute a “religion”, it must have a clear structure and belief system. Those who have a “similar philosophical belief” to a religious belief are also protected by the Regulations. The belief must be a profound belief affecting a person’s way of life or perception of the world and it should occupy a place in the person’s life parallel to that occupied by the Gods of those holding a particular religious belief. Atheism and Humanism fall within the definition of a “similar philosophical belief” whereas support for a political party, a football club or indeed Kylie Minogue would not fall within the definition.

Q6: Since 1 October 2004 the Disability Discrimination Act has applied to:

A: All employers
B: Only employers with more than 10 employees
C: Only employers with more than 15 employees

Correct answer A - The Disability Discrimination Act 1995 renders it unlawful to discriminate against disabled persons in employment and applies to all employers, regardless of the number of employees engaged by them. As of 1 October 2004, there is no exemption for small businesses from the provisions of the DDA.

Q7: Can an individual pursue a whistle blowing claim on the basis of a breach of a legal obligation owed to him under his own contract of employment?

A: Only if he believes in Santa Claus
B: Yes
C: No

Correct answer B - The controversial case of Parkins v Sodexho [2002] established that breach of a legal obligation can include the breach of an employee’s own contract of employment. The relevant question would be whether the worker reasonably believes that there has been a breach of a contractual obligation owed to him/her, rather than whether in fact there has been a contractual breach. This decision has come under much criticism from commentators. This is because, arguably, the purpose of the whistle blowing legislation is to protect disclosures made in the wider public interest, and not disclosures which relate to breach of purely private individual obligations.

Q8: Santa employs 160 reindeer. Blitzen and a group of particularly vocal reindeer are very keen to have a say in how Santa conducts Christmas this year. They want to know when they will be able to demand that they are informed and consulted about Santa’s business decisions in accordance with the new Information and Consultation Regulations. Is it:

A: On 6 April 2005
B: The next time there is a white Christmas
C: On 6 April 2007

Correct answer A - Blitzen and her colleagues will be able to demand to be consulted with effect from 6 April 2005. The new Information and Consultation Regulations, implementing the new European Information and Consultation Directive, give employees new and potentially far-reaching rights regarding their involvement in the business decisions of their employers. The Regulations have a staggered introduction depending on the sizes of the organization. If the organization employs:

• More than 150 employees, the Regulations will apply on 6 April 2005;
• More than 100 employees, the Regulations will apply on 6 April 2007; or
• More than 50 employees, the Regulations will apply on 6 April 2008.

Q9: Blitzen and her friends are trying to get support from Santa’s other, less vocal reindeer, in order to obtain the requisite number of employees to make a valid request to be informed and consulted under the new Information and Consultation Regulations. What is the minimum proportion of the reindeer workforce that she needs to line up in support of a valid request?

A: 50% of reindeer with a clean driver’s licence;
B: No minimum – if the Regulations apply then all requests are valid;
C: 10% of the reindeer workforce (subject to minimum and maximum thresholds).

Correct answer C - Contrary to what many thought, there is no automatic obligation in the Regulations to inform and consult. There is only an obligation to establish information and consultation procedures where a valid request is made by at least 10% of employees in the undertaking subject to minimum and maximum thresholds.

Q10: If an employee tells you that he is intending to leave without serving notice, which of the following can you do?:

A: Bolt the doors, handcuff the employee to his desk and refuse to let him leave the premises until the employee’s notice period has expired
B: Apply to the Court for an order that the employee turn up for work for the remainder of the notice period
C: Sue the employee for damages to reflect the additional costs you have incurred arranging for someone else to carry out the work

Correct answer C - Most contracts of employment require an individual who wishes to leave his employer to serve a specified period of notice. If that individual leaves without serving notice he will be in breach of his contract of employment. Such a breach of contract enables an employer to bring proceedings in the County Court or High Court to recover compensation against the individual personally for damages which the employer suffers as a consequence of the breach of contract. Such losses would include hiring a temp to cover the individual’s unplanned departure, for example. The courts will not order an individual to work for an employer which means that they cannot compel a worker to work or to turn up for work during the notice period. Similarly, although an employer might like to handcuff the individual to his desk for the remainder of his notice period this is not recommended!

Q11: The written statement of particulars of employment (under section 1 of the Employment Rights Act 1996) must contain details of:

A: Which individual an employee has to kiss under the mistletoe at the Christmas party
B Any additional pay and benefits which shall be provided to an employee as a result of his work being outside the UK
C A detailed list of all of the duties which an employee is required to carry out as part of his employment

Correct answer B - Every employee is entitled to a written statement of particulars of employment. Where an employee is required to work outside the United Kingdom for a period of more than one month the written statement shall specify any additional remuneration payable to him, and any benefits to be provided to or in respect of him, by reason of his being required to work outside the United Kingdom. The written statement shall also contain details of the title of the job which the employee is employed to do or a brief description of the work for which he is employed, but this need not be a detailed list of all of the duties which he is required to carry out as part of his employment. As for which individual an employee may kiss at the Christmas party, you’ll have to play that one by ear!

Q12: Beefy, Santa’s personal trainer and dietician, is sacked by Santa for not getting the results that Santa wanted. Beefy has brought a claim for unfair dismissal in the Lapland employment tribunal (which, by sheer coincidence, is governed by English law…) and Santa has admitted liability. When assessing the quantum of Beefy’s compensation, which of the following will the Tribunal ignore?

A: Beefy’s new job
B: Beefy’s six month holiday to Muscle Beach
C: The number of abdominal crunches that Beefy can do in a minute

Correct answer C – Save for the basic award (which will be calculated according to Beefy’s age, length of service and the statutory maximum weekly wage), the level of any compensatory award will be assessed according to Beefy’s losses arising out of his unfair dismissal. Beefy has a duty to attempt to mitigate his losses by finding alternative employment. If he is successful in obtaining an alternative job, his new remuneration package will be taken into account by the Tribunal when calculating his losses going forward. If Beefy chooses to take a career break to flex his pecks on Muscle Beach, this will also be taken into account by the Tribunal as he is likely to be viewed as failing in his duty to mitigate (thereby leading to a reduction in any compensatory award). In contrast, whilst his abs of steel may assist him promoting his capabilities as a personal trainer, they should not be taken into account by the Tribunal when addressing the issue of quantum.

Q13: Shortly following Santa’s normal distribution of post-Christmas bonuses to his staff, Dopey (one of Santa’s elves) decides to bring a claim in the Tribunal against Santa for race discrimination on the basis that he did not receive the same Christmas bonus as the Reindeer. Under the new Tribunal rules of procedure, if Dopey has not complained to Santa about this first, what would be the time limit for bringing his claim?

A: Three months from the date of the alleged discrimination
B: Next Christmas
C: Six months from the date of the alleged discrimination

Correct answer C - Six months. Under the new Tribunal Rules, where the Statutory Grievance Procedures apply (which includes almost all types of discrimination claims), the three month time limit will be automatically extended by another three months where an employee presents a complaint to the Tribunal but hasn’t filed a grievance first, where the claim is filed within 3 months of the date of the discrimination complained about.

Q14: Mary brings her son with her as her guest at the company Christmas party. Her son is openly gay and works as a female impersonator. After a few drinks he starts belting out some show-tunes and flirting with the male members of staff. The following day, Mary’s boss decides that he no longer wishes her to be part of his management team and demotes her without explanation. He warns her not to bring her gay son to any future work events as he is an embarrassment and the fact that he is there brings the reputation of the company into disrepute. Which of the following potential claims would Mary have under the Employment Equality (Sexual Orientation) Regulations 2003?

A: A claim for direct discrimination on the grounds of sexual orientation
B: A claim for indirect discrimination on the grounds of sexual orientation
C: A claim for her boss to be forcibly dragged in to the 21st Century

Correct answer A - Direct discrimination on the grounds of sexual orientation covers discrimination by “association” i.e. discrimination against a person by reason of the sexual orientation of someone with whom the person associates. For example, the Regulations cover an employee such as Mary who is treated less favourably on the grounds that her son is gay.

Q15: Which of the following does NOT constitute relevant disciplinary action for the purposes of the statutory dismissal and disciplinary procedure?

A: Demotion on grounds of capability
B: Imposition of a monitoring period as part of a performance management process
C: Being required to down 8 pints of lager at the Christmas party

Correct answer C - Relevant disciplinary action is defined as “action short of dismissal, which the employer asserts to be based wholly or mainly on the employee’s conduct or capability, other than suspension on full pay or the issue of warnings (whether oral or written)”.

Q16: Unfortunately, this year, due to a massive increase in the price of carrots, Santa has had to replace his traditional sleigh and reindeer with a jet powered flying transit van and a pilot. Rudolph was informed that his role was at risk of redundancy, and was invited to (and attended) a consultation meeting with Santa. His redundancy has now been confirmed and his employment terminated. The now unemployed Rudolph will be spending Christmas alone in his stable just outside Guildford, but should he have been given a right to appeal the decision to terminate his employment by reason of redundancy?

A: No, not unless he could have used his flying experience to apply for the pilot's job
B: Yes, because it is a requirement under the new minimum statutory dismissal procedures
C: Yes, because it’s Christmas

Correct answer B – The minimum statutory dismissal procedures apply to most dismissals, including redundancy. However, there is an important exception – in a collective redundancy situation (i.e. more than 20 employees are at risk of redundancy from the undertaking), the minimum statutory procedures are specifically excluded. This is on the basis that the consultation requirements in such a situation are dictated by the Trade Union and Labour Relations (Consolidation) Act 1992.

Q17: Santa’s clothing designer, Fabrice, brings a claim against Santa for unauthorised deduction from wages following Santa’s failure to pay him a bonus upon completion of his 2004 Winter Collection. Under the new Employment Tribunal (Constitution & Rules of Procedure) Regulations 2004, what is the maximum period during which ACAS can conciliate?

A: Seven weeks from the date the Tribunal sends a copy of the Claim to Santa
B: Seven weeks from the date Santa files the Response with the Tribunal
C: There is no limit

Correct answer A - Under the Tribunal Rules ACAS’s involvement is now limited to a 7 week fixed period in breach of contract / unauthorised deduction from wages / failure to pay redundancy payment claims. This runs from the date the Tribunal sends a copy of the Claim to the Respondent. The time period is 13 weeks for unfair dismissal claims and it remains unlimited for discrimination claims.

Q18: Ho Ho Ho Limited demote Mr Claus for unilaterally deciding to re-brand his traditional red company uniform to a more modern shade of “dusky aubergine”. Mr Claus is humiliated. He resigns and asserts constructive dismissal. Does Mr Claus need to lodge a grievance with the company before he can bring a claim?

A: No, there’s no need for a grievance where the complaint is about dismissal
B: Yes, because it’s a constructive rather than express dismissal
C: Yes, because disputes about company uniforms have special rules

Correct answer B - The normal rule is that no separate grievance is necessary where the complaint relates to dismissal (Regulations 6(5) and 6(6) of the Employment Act 2002 (Dispute Resolution) Regulations 2004). However, constructive dismissal doesn’t constitute a dismissal for these purposes.

Q19: Mr Claus decides to err on the side of caution and lodges his grievance with Ho Ho Ho Ltd. When is the first day that he can bring his claim?

A: 28 days from lodging the grievance
B: 28 days from Ho Ho Ho’s unsatisfactory response to the grievance
C: When the red, red robin comes bob, bob, bobbing along

Correct answer A - Section 32(3) of the Employment Act 2002 specifies that the employee must submit his written grievance and then wait 28 days before bringing a claim.

Q20: If Santa is recruiting for his prestigious sleigh team, is he discriminating if he insists on Scandinavian rather than Icelandic reindeer?

A: Yes, it is unlawful to refuse or deliberately omit to offer employment on the grounds of nationality or national origin
B: No, Santa can recruit whomever he wants
C: No, because the Mythical Sleigh Bearers (Prevention of Less Favourable Treatment) Regulations 1662 exclude reindeer

Correct answer A – If Santa refuses to recruit Icelandic reindeer then this would amount to direct discrimination on the grounds of nationality or national origin. Santa may attempt to argue that being of Scandinavian origin is a genuine and determining occupational requirement, however given that the job is to pull his sleigh and presumably any reindeer could do this irrespective of national origin, this is unlikely to find favour with an employment tribunal.

Q21: One of Santa's reindeers, Dasher, develops a severe stress-related phobia of flying. Which of the following must Santa do?

A: Dismiss Dasher summarily because he can no longer do his job
B: Make reasonable adjustments to Dasher's job
C: Pay Dasher a lower salary than the remaining reindeer

Correct answer B - It is possible that Dasher’s phobia falls within the Disability Discrimination Act’s definition of a disability if the employment tribunal decides that the phobia is a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. It is unlawful for an employer to discriminate against a disabled employee by dismissing him or subjecting him to any detriment. Further, an employer is under a duty to make reasonable adjustments to any provision, criterion or practice, or any physical feature of the employer’s premises which place a disabled employee at a substantial disadvantage from a non-disabled person. Adjustments may include additional training, or even the removal of certain duties. Failure to make reasonable adjustments is discriminatory and cannot be justified.

Q22: Adam’s boss discovers him getting intimate with Stephen in the stationery cupboard one lunchtime. Adam and Stephen are both disciplined on the basis that the Company expects certain levels of professional conduct at work and that engaging in sexual activity whilst at work is unacceptable. Does Adam have a claim for discrimination on the grounds of sexual orientation under the Employment Equality (Sexual Orientation) Regulations 2003?

A: Yes – because he is homosexual
B: No – because sexual activity at work is unacceptable (unless you are a prostitute…)
C: Possibly – depending upon whether a heterosexual couple would have been subjected to disciplinary action if they had been found with their trousers down in the same way

Correct answer C - Adam could possibly have a claim for discrimination on the grounds of his sexual orientation. However, this depends upon whether a heterosexual employee found engaging in sexual activities with a colleague of the opposite sex would have been treated in exactly the same way by Adam’s boss.

Q23: Prancer lodges a Tribunal claim against Santa. How long does Santa have to reply?

A: 21 days from the date Santa receives the Claim
B: 28 days from the date the Tribunal sends the Claim to Santa
C: 28 days from the date Santa receives the Claim

Correct answer B - Under the new Tribunal Rules the date for filing the Response runs for 28 days from the date the Tribunal sends the Claim to the Respondent (the rule used to be 21 days from the date of receipt under the old rules). It is expected to be strictly enforced.

Q24: On 1 January 2004, Santa outsourced some of his present preparation work to a factory near Wigan. He sent in an team of management elves and recruited 200 local members of staff. Unfortunately, due to too many boys and girls being bad this year, in November Santa recalled the management team and closed the factory. Are the local staff entitled to a statutory redundancy payment?

A: No, the locals have not been employed long enough to qualify for a statutory redundancy payment
B: No, Santa has statutory exemption
C: Yes, this is a clear case of redundancy

Correct answer A - Employees must have 2 years' continuous service before they are eligible to claim redundancy payments.

Q25: After the closure of the Wigan present preparation factory, notwithstanding his 127 years continuous service, one of the management elves, Legolot, was told that there was no job back in Lapland for him to return to. However, he was offered a job at a sister company (also owned by Santa), which makes gifts and cards for St. Valentine's Day. Legolot refused the job, saying that he was against the commercialisation of St. Valentine's day on religious grounds. Must Santa pay Legolot a redundancy payment?

A: No, he has offered him a suitable alternative job which Legolot has turned down for no good reason
B: Yes, the potential clash between Legolot's green complexion and the amount of pink at the St Valentine's factory is an objective reason which justifies Legolot's refusal to work there
C: Yes, Legolot's refusal to work for the St. Valentine's day operation on subjective religious grounds would be deemed reasonable

Correct answer C - Despite the job offered to Legolot being suitable in its pay, nature of duties, status, hours and location, Legolot’s personal religious reason for refusing the job is reasonable.