Charles Dickens’ A Christmas Carol features the most eminent of all unscrupulous festive employment relationships. That between Ebenezer Scrooge and Bob Cratchit.
The firm Scrooge and Marley is an employer like no other (though like many others at the time). Whilst the late Mr Marley no longer presides, his joint business partner, Mr Scrooge, continues to rule with an iron fist. And Bob Cratchit, doting father to Tiny Tim, is a loyal, patient clerk who finds himself confronted with a problematic working environment.
Dickens’ iconic work centres on the reformation of Scrooge’s life through the visits of various Christmas ghosts, rather than any of his firm’s employment rights violations. The latter would have been surprising, given that employment relationships back in early Victorian England were governed by nothing more than an unwritten moral code. And even that moral code was ignored by most.[1]
Still, Christmas ghosts provide limited entertainment to employment lawyers. And the classic tale has been told and retold countless times. It is time for a different approach. Applying modern day employment law principles to Scrooge and Marley, what would Bob Cratchit’s claim look like?
Working conditions
Dickens’ description of the firm’s counting-house paints the picture of a workplace that is less than accommodating:
‘The door of Scrooge’s counting-house was open that he might keep his eye upon his clerk, who in a dismal little cell beyond, a sort of tank, was copying letters. Scrooge had a very small fire, but the clerk’s fire was so very much smaller that it looked like one coal. But he couldn’t replenish it, for Scrooge kept the coal-box in his own room; and so surely as the clerk came in with the shovel, the master predicted that it would be necessary for them to part. Wherefore the clerk put on his white comforter, and tried to warm himself at the candle; in which effort, not being a man of a strong imagination, he failed.’
Regulation 7 of The Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992/3004) (the Workplace Regulations) provides that, during working hours, the workplace indoor temperature must be ‘reasonable’.[2] Paragraph 61 of the HSE Approved Code of Practice and guidance assists on the meaning of reasonable in this context:
‘61 The temperature in a workplace should normally be at least 16 degrees Celsius. If work involves rigorous physical effort, the temperature should be at least 13 degrees Celsius. However, these temperatures may not necessarily provide reasonable comfort, depending on other factors such as air movement, relative humidity and worker clothing. Temperature readings should be taken close to workstations, at working height and away from windows.’
Dickens depicts a counting-house closer to 16 degrees Fahrenheit than Celsius. And Scrooge has failed to provide adequate local heating[3], or issue suitable clothing.[4]
Regrettably for Cratchit, Scrooge’s breach of the Workplace Regulations does not give rise to civil liability[5] and in any event would not fall within the jurisdiction of the Employment Tribunal. However, breach of the Workplace Regulations could be used as evidence of Scrooge’s negligence in a personal injury claim if Cratchit was to become injured as a result of the cold.
It could alternatively form the grounds of a breach of the implied term that the working environment be reasonably safe. If Cratchit chose to resign as a result, he could argue constructive unfair dismissal under section 95 (1) (c) of the Employment Rights Act 1996 (ERA 1996) on the basis that the freezing temperatures were enough to repudiate the contract between he and the firm.
Threatened dismissal
The book recounts of an incident which arose when Scrooge’s nephew came to visit the counting-house. The nephew having voiced to his uncle the virtues of Christmas spirit, Cratchit felt compelled to respond:
‘The clerk in the Tank involuntarily applauded. Becoming immediately sensible of the impropriety, he poked the fire, and extinguished the last frail spark for ever.
‘“Let me hear another sound from you,” said Scrooge, “and you’ll keep your Christmas by losing your situation!’
Scrooge threatening the termination of Cratchit’s employment in such circumstances gives rise to a further breach of the implied term of trust and confidence and a further potential claim of constructive unfair dismissal.
The case of Horkulak v. Cantor Fitzgerald International [2003] IRLR 756 illustrates how intolerable working environments may constitute a breach of the implied term of trust and confidence, and Crachit would certainly have a plethora of evidence, should he chose resign in response to Scrooge’s treatment of him at work.
Further, if Crachit complained about working conditions and was sacked, he could make a claim of automatic unfair dismissal under section 103 ERA 1996 on the grounds that his dismissal was because he had made a protected disclosure and such disclosure was the principal reason for his dismissal.
Holiday
For all of Scrooge’s bitterness, he does demonstrate one gesture of seasonal good-will in begrudgingly granting his employee a paid day of holiday to celebrate Christmas.
“You’ll want all day tomorrow, I suppose?” said Scrooge.
“If quite convenient, sir.”
“It’s not convenient,” said Scrooge, “and it’s not fair. If I was to stop half-a-crown for it, you’d think yourself ill-used, I’ll be bound?”
The clerk smiled faintly.
“And yet,” said Scrooge, “you don’t think me ill-used, when I pay a day’s wages for no work.”
However, it becomes apparent that Scrooge does not make a habit out of granting leave:
‘The clerk observed that it was only once a year.
“A poor excuse for picking a man’s pocket every twenty-fifth of December!” said Scrooge, buttoning his great-coat to the chin. “But I suppose you must have the whole day. Be here all the earlier next morning.”
Evidently, Scrooge fails to afford his clerk the statutory minimum annual leave for full-time workers required by modern-day law. Full time workers are entitled to 28 days of leave by virtue of the combined effect of regulation 13 of the Working Time Regulations (WTR) 1998 (SI 1998/1833), which grants the first 20 days, and regulation 13A WTR 1998, which provides an additional 8 days.
If Scrooge grants only one measly day of holiday each year, Cratchit can bring a claim in the Employment Tribunal seeking a declaration, alongside such compensation as the tribunal considers just and equitable in all the circumstances, having regard to Scrooge’s default in refusing to permit Cratchit to exercise his right, and any loss sustained by Cratchit as a result, per regulation 30 (3) and (4) WTR 1998.
Harassment
Scrooge has no issue voicing his opinions at work. When a charity stops by seeking donations for the poor, Scrooge retorts:
“Are there no prisons?” asked Scrooge.
“Plenty of prisons,” said the gentleman, laying down the pen again.
“And the Union workhouses?” demanded Scrooge. “Are they still in operation?”
[…]
“Both very busy, sir.”
“Oh! I was afraid, from what you said at first, that something had occurred to stop them in their useful course,” said Scrooge. “I’m very glad to hear it.”
Whilst such an exchange is likely to have made Cratchit squirm, it does not give rise to a claim. The outburst was not directed at Cratchit, and nor is the comment related to a protected characteristic on his part. Though Scrooge’s manner here could be enough to create a hostile working environment, Cratchit may have to let this one pass.
Discrimination by association
It does not seem that Bob Cratchit could rely on a protected characteristic of his own with which to bring a discrimination claim, although his employer must still proceed with caution. Dickens reveals later in the book that Cratchit’s son, Tiny Tim, is disabled. This fact is revealed to Scrooge during his time spent with the Ghost of Christmas Present. From Christmas night forward, Scrooge has knowledge of Tim’s disability for the purposes of section 15(2) Equality Act 2010.
Cratchit may also be able to bring a claim of direct disability discrimination by association if he were able to establish that he was treated less favourably because he is linked or associated with his son’s disability.
Given Scrooge’s propensity for outbursts about those less fortunate than he, it could also give rise to a potential claim of harassment, if such comments related, for example, to Tiny Tim’s disability.
Summary
Whilst Bob Cratchit cannot bring a claim for breach of the Workplace Regulations, he enjoys strong prospects in a claim under the WTR 1998 for holiday pay, and if he chose to resign in response to Scrooge’s conduct, as understandably he might, a claim of constructive unfair dismissal.
And that assessment is made following one Christmas eve night which forms the subject of the book’s opening. Doubtless there were many more infringements experienced by Cratchit during his employment at the firm which would give most modern-day employment lawyers much food for thought.
Though Cratchit may find himself struggling to argue for a time extension to bring any such claim, given the events of the book were set in 1843.[6]
Merry Christmas.
Robert Allen is a pupil barrister at Parklane Plowden under the supervision of Claire Millns, Michael James, and Jim Hester. He will be accepting instructions from April 2023.
[1] But not all Victorian employers were like Scrooge. A famous example of a contemporaneous employer who took a different approach to workers’ rights was the textile designer, William Morris. See his ‘Policy of Abstention’ (1887).
[2] 38 MPs this year called for the law to go further, bringing an early day motion calling for legislation which would limit maximum workplace temperatures to 30/27 degrees Celsius, depending on the nature of the work.
[3] Para 65 of the Guidance
[4] Para 69 ibid
[5] Section 69 of the Enterprise and Regulatory Reform Act 2013
[6] Limitation expires after 3 months and the bringing a claim 179 years out of time is unlikely to be granted an extension of time.
