Even Santa Needs Good Lawyers

Last year, our Chairman Tom Stewart was lucky enough to grab an exclusive interview with Santa’s Customer Experience Elf (CEE) in the run up to Christmas.  Although Customer Experience is a moving target (expectations keep increasing, so System Concepts is currently refreshing its customer experience), he did not expect to get a call from Santa’s team this year.

Tom:    Nice to hear from you again CEE, I thought you might be too busy to talk this year.

CEE:   Yes we are, but I remember that you had some helpful comments about standards last year and I wanted your advice – our lawyers are giving one of my colleagues a lot of grief.  He’s called Elf and Safety.

Tom:    Yes we know a great deal about Elf and Safety, how can we help?

CEE:   Although Santa is a global operation, the UK is still a very important market to us and recent legislation is making it difficult for us to operate in our normal way this year.   The UK Equality Act came into force in October 2010 but that was so close to Christmas last year that our lawyers never really noticed, although they did question whether giving boys blue presents and girls pink ones was unacceptable gender stereotyping – we carried on regardless and no-one complained.  However, this year they have stopped us in our tracks.

Tom:    I’m sorry to hear that.  We'd certainly like to help if we can, but we know about usability, ergonomics, health and safety - we’re not lawyers!

CEE:   Every year we take on large numbers of seasonal employees to help with the pretty mammoth task of loading Santa’s fleet of sledges.  It’s a very demanding job and we used to check that the elves were fit enough to do it before offering them jobs.  We have now been told that this is illegal and we do not know how we can be sure that our seasonal workers can stand the pace.

Tom:    I’m pleased to say that we can help you with this one.  It’s not quite that ‘black and white’.  I represent the Institute of Ergonomics and Human Factors on the Council for Work and Health which was set up following Dame Carol Black’s review of the health of the working age population.  Part of its mission is to avoid myths and misunderstandings that often stop people working or returning to work after ill health.  There is a lot of evidence that working is generally good for people and improves rehabilitation.

CEE:   Yes, but what has this to do with Elf screening?

Tom:    Sorry.  The independent Chair of the Council is Diana Kloss MBE, a barrister and employment judge and she has written a very useful article on the Council’s website addressing such myths.  She states quite categorically

Employers are permitted to ask health questions after making a conditional job offer subject to medical clearance and to withdraw the offer if a health condition makes the person unsuitable even after reasonable adjustments have been considered.

CEE:   Yes but does that mean we need to wait till we’ve offered them a job before discovering that they won’t be able to do heavy work?

Tom:    No.  You can still ask health questions pre-offer in order to establish “whether the applicant will be able to carry out a function intrinsic to the work concerned”.  One of Diana’s examples from the Code of Practice involves “a company recruiting someone to work in a warehouse who will be required to lift and handle heavy items” and she explains that the company could ask questions specifically about ability to undertake such tasks (“with reasonable adjustments for a disabled applicant, if required”).

CEE:   Well that’s a relief.  Many thanks for your help.  You mentioned that you were ‘refreshing System Concepts’ client experience – can I ask what you are doing?

Tom:    Certainly – we are improving our website, making our offices and labs more ‘visitor friendly’ and generally improving our visual communications and branding – watch this space!

CEE:   I will, Merry Christmas!