How did you fare? - Answers to the 2005 Christmas Quiz

A huge thank you and well done to all of our readers who took part in the 2005 Christmas Quiz. The winner will be notified shortly, and for those of you who have been waiting for the answers to our tinsel-clad teasers, wait no more!

Question 1

Santa is having his annual Christmas Party. Frisky the Elf lets off steam by downing a few cocktails before weaving over to Fruity the Tree Fairy and loudly declaring that he’s always greatly admired her baubles. Fruity, who is also a bit worse for wear, is livid and storms out dramatically. When Santa arrives at work the next day, he finds a note scribbled across his office whiteboard saying “Frisky is a sex pest”, signed “Fed-up Fruity”. Santa is rightly worried, but could Fruity’s note constitute a formal grievance?

(A) No

(B) Only if it’s written in lipstick

Correct answer C - Yes. Technically, under the Statutory Grievance Procedures, while a grievance must be in writing, there is no need for it to actually say on its face that it’s a grievance. While the employee must notify the grounds for the complaint (as distinct from the complaint itself), there is no need for this to be done in writing so Fruity’s message is capable of constituting a formal grievance. A recent decision (Bowen v Moss Pharmacy) confirms that “grievance” will be construed broadly. The safe thing for Santa to do would be to check with Fruity whether she wants to take the matter further.

Question 2

Fruity confirms that she wants to raise a formal grievance and is duly invited to a grievance meeting. An hour before the hearing is due to take place, Fruity phones Santa and says that she’s unable to attend because her mother is going into hospital and Fruity needs to go with her. Under the Statutory Grievance Procedures, must Santa reschedule the grievance meeting?

(A) Yes – but only if he sends a bunch of grapes

(B) Only if the hospital appointment is unexpected

Correct answer B - Only if the hospital appointment is unexpected. The requirement to reschedule missed meetings under the Statutory Disciplinary and Grievance Procedures only applies if the reason for missing the meeting was not foreseeable at the date that the meeting was arranged. If the hospital appointment was planned long in advance then, unless Fruity took all reasonable steps to attend the meeting, there is no statutory obligation to reschedule. However, employers should be careful about relying on this exemption as failure to deal with a grievance could be a breach of the implied duty of trust and confidence.

Question 3

Fruity lodges a claim in the Tribunal for sexual harassment but, in a spirit of goodwill to all men, she withdraws her claim in writing on 25 December. The Tribunal write confirming that they have closed the file. Santa is relieved but has a nagging doubt – Fruity is tempestuous and he fears that she may change tack again once the Christmas spirit wears off. Need Santa be worried about Fruity changing her mind?

(A) Yes

(B) No

Correct answer A - Santa is not out of the magic forest yet. Simple withdrawal of a claim will not prevent Fruity from bringing a new claim based on the same facts, provided that the limitation period has not yet expired. If Santa wants to achieve certainty he must either apply for dismissal of the claim following withdrawal or reaching a binding settlement with Fruity.

Question 4

Mary Christmas is seven months pregnant. She is feeling tired and does not believe she is able to help load the sleigh. Santa is unhappy. This is a key part of her job and he wants to insist that she does it. What should he do?

(A) Tell Mary that if she doesn’t do her job properly, he’ll fire her

(B) Carry out a risk assessment and make reasonable adjustments to avoid any risks identified

Correct answer B - Santa must carry-out a risk assessment of any processes or working conditions which could jeopardise the health or safety of the employee or that of her baby. She must be told the results of the risk assessment, and consulted with. It seems reasonable for Mary to feel unable to load the sleigh at her advance stage in her pregnancy. Santa is under a duty to make reasonable adjustments to Mary’s role to avoid any risk identified during the assessment. Whilst temporary adjustments to her working conditions may have to be made, he should not alter her terms and conditions of employment without her consent. If it is not possible to make adjustments and avoid the identified risks, he must offer alternative work which is both suitable and appropriate for her to do in the circumstances. Assuming Santa’s organisation is too small to do this, and Mary cannot work without health and safety risk, she may have to stay away from the workplace on full pay. If Santa does sack her, it is extremely likely that this will be an unfair dismissal and discriminatory on the grounds of sex

Question 5

Rudolph has just found out he is to be a father. He wants to take some time off to care for his newborn buck. Every buck is dear to him (sorry!), so he wants to know what remuneration, if any, he will receive during any paternity leave period. There is no staff policy on this issue. Will he:

(A) Be paid his normal weekly wage, as usual?

(B) Receive statutory paternity pay?

Correct answer B - Most employees are entitled to Statutory Paternity Pay (SPP) from their employers during their paternity leave, subject to certain qualifying conditions. SPP is paid by employers for either one or two consecutive weeks as the employee has chosen. The rate of SPP is the same as the standard rate of Statutory Maternity Pay. Currently, this is £106 a week or 90% of average weekly earnings if this is less than £106. Employees who have average weekly earnings below the Lower Earnings Limit for National Insurance purposes (currently £82 a week) do not qualify for SPP. Such employees may be able to get Income Support while on paternity leave.

Question 6

Rudolph has just been diagnosed with cancer of the hoof. He is not suffering any symptoms yet and the operation to remove the lump will not leave any side effects. Would he be classified as having a disability under the Disability Discrimination Act 1995?

(A) No - only if he suffers symptoms that have an adverse effect on his ability to carry out day-to-day activities (such as pulling sleighs)

(B) Yes - diagnosis with any cancer is sufficient to be classified as a disability, even without symptoms

Correct answer B - On 5th December 2005, the definition of "disability" under Disability Discrimination Act 1995 was extended to cover all cancers from the point of diagnosis (even without any symptoms). This will increase the numbers classified as disabled significantly.

Question 7

Santa decides that he needs his elves to be working at full steam in the lead up to Christmas. There are some elves aged 65 and 66 who just can’t manage to build the toys quickly enough anymore. Santa is feeling in an un-festive mood so he decides that he will unceremoniously dismiss them from his service next November, before the next Christmas rush, so that they can be replaced by younger elves. Will they potentially be able to claim unfair dismissal?

(A) No - they can only claim seven mince pies, three carrots and a pair of slippers

(B) No - unfair dismissal claims cannot be brought by employees over the age of 65

Correct answer C - At the moment an employee who is over the age of 65 cannot usually bring a claim for unfair dismissal. However, with effect from October next year, that limit will be lifted. Age discrimination will also become unlawful, so a discrimination claim may be brought if the elves can show that the reason they were dismissed was their age, and if Santa cannot objectively justify the decision.

Question 8

Ms Holly is fed up with the pay she's been receiving from Santa this year. She suspects it is significantly less than the pay her predecessor, Mr Ivy, was receiving. However, as far as she's concerned, she does exactly the same work as he did. Ms Holly has therefore decided to bring an equal pay claim against Santa. However, is Ms Holly correct in thinking that she can use Mr Ivy as her comparator, given he is her predecessor and is no longer employed by Santa?

(A) No - as he is no longer an employee of Santa

(B) Only if she gives him a kiss under the mistletoe

Correct answer C - In the case of Macarthy's Ltd v Smith [1979], the question of whether a comparison under the Equal Pay Act 1970 could be made with a predecessor was referred to the European Court of Justice. The European Court of Justice held that under Article 141 of the Treaty of Rome a comparison could be made with a predecessor. Accordingly the Equal Pay Act 1970 is now construed in conformity with Article 141 as not requiring contemporaneous employment of the claimant and the comparator.

Question 9

Santa's worried. After the disastrous business decisions he made last Christmas, three and a half months ago, 30 of his 150 reindeer requested that they be informed and consulted under the Information and Consultation Regulations. Santa checked whether the request was valid - and found out it was. However, he's been so busy organising things in the run up to this Christmas that he has forgotten to do anything further about it. Under the Regulations, has Santa already exceeded the time limit to take the next step of making arrangements for the reindeer to appoint or elect negotiating representatives?

(A) Yes - negotiations must be initiated within three months of the request

(B) No - negotiations must be initiated within six months of the request

Correct answer A - Once an employer receives a valid request under the Information and Consultation Regulations, it needs to initiate negotiations with representatives of the employees as soon as reasonably practicable and within three months at the latest. During this three month period the employer must make arrangements for employees to elect or appoint negotiating representatives. Arrangements must ensure that all employees of the undertaking are entitled to take part in the election/appointment of representatives, and that all employees are represented during the subsequent negotiations.

Question 10

Ernie the Elf has a long-term back problem, which means that he cannot pick up large presents and put them in Santa's sack. He has explained this to Santa who has said that "he will just have to get on with it" as it is a busy time of year. Ernie recalls that he has read somewhere in hrlaw that Santa should make adjustments to his working environment. What adjustments (if any) should Santa make?

(A) None - Santa's right, that’s Ernie’s job, like it or lump it

(B) Santa should provide Ernie with a large orthopaedic sofa and allow Ernie to sit around eating mince pies whilst all the other elves do his work

Correct answer C - The duty on an employer is to make a reasonable adjustment, taking into account the resources of the business and the needs of the employee. The emphasis is very much on whether an adjustment is reasonable and so answer B is wrong because Ernie can't expect to sit around watching his colleagues do all the work and still get paid as that goes beyond what is reasonable!

Question 11

Prancer has child care responsibilities. He wants to alter his working day so that he can collect his 5 year old buck from school, and so he makes an appropriate written request to Santa to work flexibly. What should Santa do?

(A) Reject the application because only female employees can make such a request

(B) Arrange a meeting within 28 days to discuss the application, and give a written decision within 14 days of that meeting

Correct answer B - Assuming Prancer is an employee with at least 26 weeks continuous employment, he has a right to make the request. Santa must arrange a meeting within 28 days to discuss the application (unless accepted within that time), and give a written decision within 14 days of that meeting. Prancer is entitled to be accompanied to the meeting (by a colleague only - not a trade union representative). Santa can refuse a request for flexible working but only where there is a clear business reason for doing so, and there are a limited number of business reasons which can be given.

Question 12

Dasher decides that he has spent too many years on Santa’s sleigh team and wants a change of role. He decides to become a coach for aspiring reindeers who want to pull Santa's sleigh. Dasher's offer of employment with the Reindeer Training Academy is subject to their receiving satisfactory references. One of the referees is Santa himself. Santa comments on the phone that for a Norwegian reindeer Dasher isn’t bad, but not as good as reindeer from Lapland, who are superior. Can Dasher bring a claim for race discrimination against Santa even though the reference was given after the termination of his employment?

(A) Yes

(B) No

Correct answer A - Former employees may continue to be entitled to be protected from acts of discrimination by their former employers in certain circumstances. The Race Relations Act 1976 expressly outlaws discrimination against a former employee on grounds of race, ethnic or national origins by subjecting him to a detriment or harassing him where the discrimination or harassment arises out of and is closely connected to the former employment relationship. A similar provision applies for discrimination on grounds of religion or belief and sexual orientation. However, in relation to discrimination on grounds of sex, colour or nationality, there is broadly equivalent protection through case law.

Question 13

Santa dismisses Elkie the reindeer because he finds her secretly knocking back the Smirnoff in the stables. He doesn’t follow any procedures. Assuming that this happens AFTER 1 February 2006, what will be the maximum compensatory award that an Employment Tribunal will be able to make to Elkie if she proves she has been unfairly dismissed?

(A) £56,800

(B) £57,300

Correct answer C - Where a dismissal takes effect after 1 February 2006 any claim for unfair dismissal will be subject to an increased statutory cap of £58,400. This is as a result of the annual inflation-linked increases.

Question 14

Santa receives a job application from Vixen, Rudolf’s younger sister. He rejects her application, saying that he will only look at applications from reindeer who have at least 10 years’ flying experience. Vixen only has 7 years’ experience. Would she have a potential claim under the new Age Discrimination Regulations?

(A) No - the Regulations don’t prevent employers from requiring a certain number of years’ experience

(B) Yes - unless Santa could show that a requirement to have 10 years’ experience was actually necessary for the job (for example if it is too dangerous for reindeer to fly with less than 10 years’ experience)

Correct answer B - It will be indirect discrimination to impose a requirement that an employee must have 10 years’ experience before they can apply for the job (because this will be easier for older employees to comply with than younger employees), unless it pursues a legitimate aim and is appropriate and necessary (or proportionate). In practice, it may be that Santa would be able to defend a claim on the basis that it is too dangerous for reindeer to fly with less than 10 years’ experience.

Question 15

Fabrice, Santa’s image consultant, is fired on the spot by Santa when he reads in a well-known celebrity magazine that most people consider Santa to be overweight with a very limited wardrobe. Fabrice has brought a claim for unfair dismissal and Santa has admitted liability. When assessing the quantum of Fabrice’s compensation, which of the following will the Tribunal take into consideration?

(A) Fabrice’s fabulous Gucci loafers

(B) The fact that Fabrice will be receiving a lump sum of compensation rather than his monthly salary payment

Correct answer B - In assessing compensation for unfair dismissal, Tribunals will apply a discount for accelerated receipt of payments. This means that the fact that Fabrice will be receiving a lump sum of compensation rather than a monthly salary payment will be a relevant consideration. Traditionally a discount of approximately 5% is applied. The manner of Fabrice’s dismissal would not affect any compensatory award for unfair dismissal.

Question 16

Santa has decided that due to an increase in naughty children, unfortunately he needs to make one of his elves redundant. Binky is subsequently made redundant by Santa and paid a redundancy payment in excess of the statutory minimum. Binky then successfully brings a claim for unfair dismissal on the basis that he was unfairly selected for redundancy. Which of the following statements is correct?

(A) The redundancy payment already received by Binky extinguishes his entitlement to a basic award, but will not be taken into account when assessing the compensatory award

(B) The redundancy payment is not taken into account when assessing either the basic or the compensatory awards

(C) The statutory element of the redundancy payment will set off entitlement to a basic award, and the excess of the redundancy payment will be taken into account when assessing the compensatory award

Correct answer C - Any redundancy payment received by an employee must be deducted from the basic award (section 122(4) Employment Rights Act 1996). Normally, this completely extinguishes the employee's entitlement to a basic award. However, where the amount of the basic award is lower than the redundancy payment (e.g. where an ex gratia payment may have been made by the employer in respect of the redundancy situation), then the excess is deductible from the compensatory award.

Question 17

It’s December 2006. Frosty the Snowman wants to retire some of his employees. The contracts say that the retirement age is 65. Frosty does nothing to notify his employees when they are coming up to retirement. One of them, Flaky, is now complaining that he would have liked to work until December 2008, when he will be 68. Frosty’s lawyers have told him that Flaky can claim automatic unfair dismissal. What did Frosty do wrong?

(A) He should have written to Flaky six months before his retirement date to notify him of the proposed retirement date and that he has the right to request to work beyond 65

(B) He should not have tried to retire Flaky in December. It is too cold, and retirement should only take place in summer when an employee can enjoy the weather

Correct answer A - An employer must notify an employee of the proposed retirement date at least 6 months before the intended retirement date. They must also notify the employee that he has the right to request to work beyond the proposed retirement date.

Question 18

Santa has recruited some new reindeer into his world famous sleigh team. As part of their employment contract he wants them to enter certain restrictive covenants, which will prevent them from poaching staff or customers upon termination of employment. When considering the enforceability of restrictive covenants, which of the following statements is true?

(A) Restrictive covenants are enforceable however harsh they may seem – it is up to the parties to agree what they like

(B) Restrictive covenants are only enforced by the Courts if they are designed to protect the employer’s legitimate business interests (for example, the maintenance of a stable workforce) and are no wider than is necessary to protect those interests

Correct answer B - The correct test for considering whether or not a restrictive covenant is enforceable is that it must protect the employer’s legitimate business interests (for example, the maintenance of a stable workforce) and be no wider than is necessary to protect those interests.

Question 19

The reindeers have put up a notice board in their stables for Christmas jokes. One of the jokes is about a reindeer who is unable to land on the roof of a house because he gets dizzy due to a rare medical condition. Everybody finds this funny and is laughing except for Rudolph who is worried and upset that the cancer of his hoof will affect his flying abilities too. Does Rudolph potentially have a claim?

(A) Don't be silly, it is just a joke and Rudolph is being far too sensitive

(B) No - the joke is not about Rudolph and his cancer of the hoof so does not directly affect him

Correct answer C - There is now a separate claim for harassment under the Disability Discrimination Act. The actions of others which have the effect of making an individual's working environment intimidating, hostile or oppressive (even if not intentional or about that individual) can give rise to a claim for harassment.

Question 20

Cha-Cha, Santa’s salsa teacher, is demoted by Santa for failing to get him a place in the latest series of Strictly Come Dancing. Cha-Cha is humiliated. She resigns and asserts constructive dismissal. Does Cha-Cha need to lodge a grievance before she can bring a claim?

(A) Not if she performs a quick soft shoe routine

(B) Yes - because it’s a constructive rather than express dismissal

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, so a grievance would need to be lodged before a claim can be brought.

Articles are correct of time of publication

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