9th December 2021

Employment Law Advent Calendar: Day 9

It’s the 9th of December and you want some myrrh employment law hints and tips? Well, okay then, look behind door number 9 to find out who or what is there to help employers this Christmas.

It’s a Christmas Present

Who doesn’t love Secret Santa?
It might be around about now that there’s talk of the timeless ritual, Secret Santa. The lucky ones receive a gift that creates a warm glow because the gifter has really thought about what the giftee would like. The unlucky ones can be left feeling uncomfortable, or worse, humiliated because the giftee (unintentionally or deliberately) chose an inappropriate present. What one person perceives as either thoughtful or harmless fun can give rise to grievances and potential discrimination claims.

Could Secret Santa present an employer with a problem?
Can you see the potential problems with the following gifts:

  • Fluffy handcuffs, a naked apron, chocolate appendages?
  • Deodorant, mouthwash, a wig?
  • A book on ‘how to be a better boss’?
  • A bottle of wine and a packet of bacon?

As funny as these gifts may be to the gifter and those watching the giftee rip off the wrapping paper, for the employer they could result in expensive harassment claims.

The Equality Act 2010 sets out the harassment as being:
“unwanted conduct [related to one of nine protected characteristics] that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment…”

To demonstrate this point, in 2008 a Muslim police officer received a Secret Santa gift of a bottle of wine and a packet of bacon from a colleague. The giftee was later reported for racism to his superior.

It doesn’t matter if the giftee appears to enjoy the joke – if opening the gift in front of colleagues the giftee will often ‘play along’ to avoid being called a party pooper – it’s how the giftee feels at the time. Employment Tribunals will, of course, decide cases on the basis of those who genuinely believe their dignity is violated rather than those who are easily offended by something that is trivial or fleeting. But does an employer want to be in that position?

What can employers do to avoid discrimination claims?
Here are some helpful tips:

  • An employer is not a Bah Humbug for setting clear rules about the type of gifts that cannot be exchanged. A good place to start is no sex-related gifts.
  • Everyone should be told they (candy) cane do Secret Santa or not, it’s up to them. Participation should be voluntary and no one should be pestered to ‘join in with the fun’.  
  • If a gift causes offence or upset, a sincere apology can fir sure go a long way to resolving matters. However, where a grievance is raised it should be dealt with quickly under the Grievance Procedure.

Finally, an employer thinking about asking or requiring an employee to dress up as Santa to hand out Secret Santa gifts should be careful. In the case of McClellan v Dow Jones the Tribunal found that Mr McClellan had been constructively dismissed after being forced to dress up as Santa because he was an ‘old duffer’.  

Make sure you elf a merry little Christmas and contact a member of the Blackadders Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland for help and advice.

Donna Reynolds, Partner
Accredited by the Law Society of Scotland as a Specialist in Employment Law & Discrimination Law
Employment Law
Blackadders LLP



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