Elf ‘n’ Safety

Modern businesses can feel like a difficult-to-navigate world of red tape. As we approach Christmas, James Muller, Principal Associate in Weightmans’ Regulatory Team, looks at some of the compliance issues that might affect even the most Christmassy of businesses - Santa and his present-delivery operation (if they were subject to the law of England & Wales).

North Pole Workshop

General Health and Safety

• As an employer, Santa has a responsibility under s2 Health and Safety at Work etc Act 1974 (“HSWA”) to ensure the health, safety and welfare of all of his employees so far as reasonably practicable. There is no settled case law on the application of HSWA to elves, but assuming it would apply, Santa bears the burden of showing that any risks to the elves have been reduced so far as reasonably practicable, and so he will therefore want to ensure that he can clearly evidence that, most likely through documentation.
• Santa will also need to ensure that he has conducted a suitable and sufficient risk assessment of the risks to which the elves are exposed at work, in order to comply with Regulation 3 Management of Health and Safety at Work Regulations 1999. Because Santa employs five or more elves, he will need to record the signification findings of such an assessment.
• Santa will also need to ensure that he has conducted a fire risk assessment for the workshop, and that he is taking the required general fire precautions, in order to comply with the Regulatory Reform (Fire Safety) Order 2005. The wooden construction of the building and number of open log fires would need to be factored in. The workshop is unlikely to be tall enough to engage the “Higher Risk Building” Building Safety Act 2022 (which only applies to buildings of 7 storeys/18 metre or more), even if multiple elves do live above the workshop in separate residential units.
• Under the Control of Asbestos Regulations 2012, and given the age of the workshop, Santa will also need to make sure that he has a plan to manage any asbestos present at the workshop and can demonstrate by reference to an asbestos management plan, the location and condition of any asbestos.
• Even though it might be sourced from the pristine glaciers of the North Pole, Santa will still need to ensure that he has processes in place to monitor and manage the water system at the workshop, ensuring that it does not expose any of the elves to a risk of contracting legionella or other harmful pathogens.
• Santa may also want to take into account the risks posed by third parties coming on to site, like curious penguins or hungry polar bears.

Workshop Equipment

• Unless the elves are able to construct presents using magic (which is currently unregulated), it is likely that they will use a variety of work equipment for the job – ranging from hammers to complex “thingamajig” machines.
• Under the Provision and Use of Work Equipment Regulations 1998”PUWER”, Santa will need to ensure that all equipment is suitable for its use, and that the elves receive adequate information, instruction and training in the use of that equipment.
• Any machines with dangerous moving parts, such as the thingamajig machines, need fixed guarding around those parts, or interlocking guarding if routine access is required by the elves into a machine.
• All equipment will need to be suitably maintained, and the elves should keep records of this.
• When storing the coal to gift to the naughty children, Santa will also need to ensure that any explosive atmosphere created from coal dust complies with the Dangerous Substances and Explosive Atmospheres Regulations 2002, and will also need to ensure that elves are not exposed to risks to their health from coal dust (exposure to dust at work currently being one of HSE’s campaigns) – implementing physical and administrative controls, and also providing face-fitted RPE.

Is Santa GDPR compliant?

• Santa stores and processes a significant amount of personal data for over 8 billion people around the globe.
• For those from whom he receives letters, he is unlikely to be able to rely upon the “Consent” lawful processing criteria for that data. Consent should be given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the data subject’s agreement to the processing of personal data relating to him or her, such as by a written statement, including by electronic means or an oral statement.
• Santa will of course be aware that children require specific protection with regard to their personal data as they may be less aware of the risks, consequences and safeguards concerned and their rights in relation to the processing of personal data.
• If children wish to know whether they are on the ‘naughty’ or ‘nice’ list, they can make a Subject Access Request, verbally or in writing, including by social media. GDPR is clear that there are no formal requirements for a valid request. It can be made to any part of Santa’s organisation and does not need to be directed to a specific person or contact point.

Other Policies/Procedures

• Santa would also need a modern slavery policy to help evidence that none of the elves were the victims of modern slavery, and that any of the suppliers they used did not use anyone that was.
• Have you ever wondered how the children of the richer parents seem to get more expensive gifts from Santa? Santa may therefore also need to reconsider his bribery and corruption policy.

The Sleigh

Loading the Sleigh

• Under Manual Handling Operations Regulations 1992, where is it reasonably practicable to avoid the need for the elves to load the sleigh by hand, that should be done. Santa should therefore seek to load the sleigh using mechanical means.
• If the sleigh did need to be loaded by hand then Santa should consider the use of handling aids. He would also need to make a suitable and sufficient assessment of the risks to which elves were exposed by doing so (potentially using HSE’s “MAC” tool) and take appropriate steps to reduce that risk. He would also need to provide the elves with manual handling training and information on the weight and centre of mass of each load they were carrying.
• If loading using mechanical means, then the lifting operations would need to comply with the Lifting Operations and Lifting Equipment Regulations 1998. This would also require that lifting equipment used to lift goods underwent a thorough examination by a competent person every 12 months. The equipment would also be subject to the general maintenance, suitability and training requirements for equipment under PUWER.
• Santa would also need to manage any workplace transport risks that arose from lifting equipment loading the sleighs – ensuring physical separation of pedestrian elves from equipment, where reasonably practicable.

Would Santa need an Operator’s Licence for his sleigh?

• Even if Santa only gave a paperback book to everyone in the world, the sleigh would still need a load capacity of around two million tonnes.
• Santa could seek to show that his Sleigh was not mechanically propelled, but propelled by magic or nine reindeer alone (the latter being a little incredible given the sleigh’s weight).
• Otherwise, Santa would need a goods vehicle operator’s licence for his sleigh as it would be classed as a heavy goods vehicle (any vehicle above 3.5 tonnes GVW).
• However, because Santa would only be carrying his own goods (rather than acting as a haulier for other characters), he could operate under a “Restricted Licence”. The effect of this would be that he would not need to appoint one of the elves to act as a Transport Manager.
• Santa would still need to ensure that his sleigh was sent to the elf garage for a preventative maintenance inspection and a brake test within the periods specified on his licence.

Driving the Sleigh

• Santa already has a tight window to get deliveries to eight billion people sorted throughout one night. Some might think that the global time differences would allow him some extra time – however, under EU hours rules, Santa would be restricted to driving up to 9 hours per day (so he will definitely have to miss out those on the naughty list). This time includes the time spent actually making the deliveries too, as Santa would still be working during that period and so it does not therefore qualify as a rest.
• Santa must ensure he inserts his jingle-tacho-bell card into his sleigh to ensure all of his hours are recorded.
• Santa should provide himself with a drivers’ handbook, detailing the various rules and policies to which he subjected to. That handbook should cover such issues as reporting any building/bridge strikes, how to ensure that a sherry at every house does not put him over the blood-alcohol limit, and driving in adverse weather (a white Christmas?).
• Santa will also need adequate insurance cover for his sleigh. In particular, Santa should consider a policy that provides coverage for legal advice in relation to any criminal investigations and/or proceedings.

Delivering Presents

Lone Working

• As a lone worker, Santa may be at an increased risk of injury and it will be more difficult to respond to any injury he does suffer. He will need to ensure that the associated risks have been assessed, and that suitable measures are in place for managing risks, supervision, and for responding to emergency situations.

On the roof

• The Work at Height Regulations 2005 establish a “hierarchy of controls” for potential work at height. In the first instance, work should not be carried out at height at all if it is reasonably practicable to carry out the work some other way. Therefore, if Santa is able to access properties without landing on the roof and climbing down the chimney (eg by magicking open locks) then he should do so.
• If the work on the roof cannot be eliminated, then he should try to establish full edge protection (eg scaffolding) – if that is not reasonably practicable, then he should seek to utilise fall-arrest equipment eg harnesses) – only if that is not reasonably practicable, should he move onto consider measures to cushion his fall (eg nets, airbags, or thick lawyers of powdery snow).
• If Santa is relying on a lower down measure on the “hierarchy of controls”, then he should clearly document why he cannot take a measure further up that hierarchy in his risk assessment.
• Santa will also need to comply with the Manual Handling Operations Regulations 1992 – assuming he cannot eliminate the need to manually handle his sack of presents, and that no lifting aids are practicable, he will need to assess the manual handling risk and provide himself with adequate information regarding each sack’s weight.

Down the chimney

• Santa will need to consider the same work at height considerations whilst climbing down the chimney, imposing control measures, in accordance with the hierarchy of controls, to ensure that he cannot fall a distance liable to cause him injury.
• Additionally, the chimney would constitute a confined space under the Confined Spaces Regulations 1997. Under the regulations, Santa should not enter the Chimney unless it is not reasonably practicable for him to enter the house without doing so. Assuming he needs to use the chimney, he must establish a safe system of work for working in the chimney, and will need to ensure that there are suitable emergency arrangements in place for the elves/reindeer to rescue him in the case of an emergency.

Environmental Impact

• Everybody knows the best part of a parent’s Christmas day is collecting all the discarded wrapping paper/packaging and sorting them into separate piles aligned with their local authority’s waste collection rules. Well, there is an early Christmas present for 2024! At the end of November, the Government launched a new policy that aims to simplify recycling in England. The changes would mean households and workplaces will be required to have four containers for non-recyclable waste, food waste, paper and card, and all other dry recyclable materials including plastic, metal, and glass. As well as simplifying the process for households it will also make it easier for businesses to design packaging and provide clearer directions to users on how it is to be recycled. 2025’s Christmas waste collection will be a doddle!
• With all that packaging Santa would also do well to check that he is compliant with the new Extended Producer Responsibility (EPR) requirements. As a packaging waste producer (both manufacturing the packaging in the North Pole and then importing it into the UK) he will have significant compliance obligations to recycle and recover packaging. Santa was provided with a reprieve in 2024 when the government decided to defer the coming into force of the packaging EPR regime until October 2025 but the new requirements are just around the corner. Santa would be wise to act now to ensure that he is ready.
  
  
• One thing Santa won’t have to worry much about is the environmental footprint of his travel choices. 2024 has seen yet another closing of the net around misleading environmental claims by businesses, with high profile rulings – in the UK and further afield – setting sustainable aviation claims within their sights. You would have thought that Rudolph and his gang provide a more environmentally friendly option than some of the bigger airlines, but Santa should look to both ASA and CMA guidance to ensure that he doesn’t fall foul when describing their environmental credentials – does he avoid absolute claims and has he undertaken a full lifecycle assessment so as to substantiate any carbon neutral credentials that he makes?
  
  
• Looking beyond the environmental footprint of his deliveries however, has Santa stopped to think about the sustainability credentials of his supply chain? All of those elves putting in long shifts in in the workshops, working through comfort breaks and unpaid overtime, all to meet the hardest of all the deadlines. Has Santa asked the difficult questions about his supply chain? With the EU’s Corporate Sustainability Due Diligence Directive entering into force in July of this year, he will soon be under a legal obligation to do so. But the North Porth is not in the EU, I hear you cry! Correct, but with a significant operation in the EU on the 24/25 December, he is more than likely to be within scope. Moving forwards Santa will need to assess and address adverse environmental and human rights in his supply chain, so we can expect the elves on our shelves to be a little more cheerful and a little less mischievous in years ahead.

Who should Santa write his letter to if he needs help?

That’s a long list – no wonder they didn’t put all of that in the Christmas songs/movies/stories!

Luckily, like you, Santa can seek expert legal advice on a full range of business compliance areas by contacting Weightmans’ Regulatory Team (NB - writing a letter might not be the fastest way!).

Key contacts

Health & Safety:

• James Muller James.Muller@weightmans.com
• Andrew Brammer Andrew.Brammer@weightmans.com
• Anna Naylor (also owns a Christmas Tree farm!) Anna.Naylor@weightmans.com 
  
  

Transport Regulation:

• Chris Powell Chris.Powell@weightmans.com
• Sarah Jennings Sarah.Jennings@weightmans.com

Environmental:

• Nick Barker Nick.Barker@weightmans.com
• Simon Colvin Simon.Colvin@Weightmans.com 
  
  

Business and Cyber Compliance:

• Mike Balmer MichaelB@Cyxcel.com
• James Farrell JamesF@Cyxcel.com

Merry Christmas from Weightmans’ Regulatory Team.