Rechtsanwältin, Senior Associate
Out-Law News | 13 Dec 2006 | 3:25 pm | 5 min. read
Campaigners and trades unions have spoken out about the playing of Christmas music in shops over an ever-extending festive period and the psychological effects that the repetitive tunes can have on staff who have no choice but to listen to it.
"If people don't want it and if they have a negative response to it and if they're exposed to something continually, the same songs over and over, it's no different to being tortured, it's the same reaction, the body will react in the same way," said Val Weedon, national coordinator of the UK Noise Association.
"We are asking government to investigate this particular area and to look into whether it is something that the Health and Safety Executive could take on board," said Weedon.
Shop workers' union Usdaw (Union of Shop, Distributive and Allied Workers) says that it is ready to take action on the issue.
"It's an issue that has been brought to our attention," said Usdaw's Paul Clarke. "What we're saying to managers is if Christmas carols are being played on the same CD repeatedly that could create an unhealthy working environment for people."
"Our first port of call would be our officials or reps talking to managers and saying we're sick of listening to Little Drummer Boy for the 15th time today could we change the CD over?" he said.
The union says that it recommends that staff first negotiate informally with managers over the issue, but that it will back any members who want to take the issue further. "If anyone did want to take it any further we would be happy to do so," he said. "It must drive people to distraction and whether there's a health and safety issue or whether it's actionable it doesn't create a very healthy working environment particularly at what is the busiest time of the year."
Employees who wanted to take a legal case would have limited options, said Catherine Barker, an employment lawyer with Pinsent Masons, the law firm behind OUT-LAW. "If the incessant Christmas music does in fact make an employee ill they may try to bring a claim in the civil courts for personal injury," she said.
"To make out a case the employee would need to show that the employer had breached its duty of care to provide a safe working environment by playing the music in the first place. The employee would also need to show that their ill health was directly attributable to the Christmas music, and not to any other cause. The biggest hurdle for the employee would probably be to demonstrate that his or her illness was reasonably foreseeable by the employer. This would involve the employer being on some form of notice that the particular employee had some vulnerability to Christmas music, the ill health in question, or both."
"A marginally more plausible argument may be for an employee to argue that his or her working conditions have substantially changed to his or her detriment by the music being played and that this amounts to a fundamental breach of contract entitling him or her to resign and claim constructive unfair dismissal," said Barker. "Whether or not playing festive music during the festive period could really be said to amount to a fundamental breach of contract is highly debateable."
One man was so disgruntled about piped music that he decided not to seek redress under existing law, but to create a new one. Life peer Lord Beaumont of Whitley proposed a bill earlier this year which would outlaw piped music altogether in public places related to health and transport. Beaumont believes that it can cause real damage.
"[It would] Certainly have an adverse effect on me, it would drive me to murder I would have thought. I'm not saying necessarily that it would be physically harmful but it would be very annoying, very distressing and something people shouldn't be made to put up with," Beaumont told OUT-LAW.
"I think quite definitely that people who work in shops should have certain rights not to have music permanently pumped into them," said Beaumont.
The Health and Safety Executive is responsible for monitoring and enforcing safety legislation in workplaces, but a spokesman said that it does not regulate retail premises, which are monitored by local authorities.
The Chartered Institute of Environmental Health said that it had not come across any cases of Christmas music alone being a cause of mental distress. "For an employee to seek redress specific to a type of music, rather than volume, they would have to suffer health effects independent of any other cause," said a spokesman. "As far as we are aware, Christmas music alone has not been a cause of occupational ill-health."
Nigel Rogers is the secretary of PipeDown, a campaign against piped music. "We know that unwanted music is another noise, perhaps a particularly pointed noise because it's got a message and it's got a beat and a rhythm normally, so it affects people more than you might think just a normal background noise would," said Rogers.
"Any noise can cause a whole range of physical and psychological abnormalities. In physical terms it can mean raised blood pressure, cortazone disbalance and also depression of the immune system, in fact it generally makes you ill, it causes stress, which is not at all surprising. It is a psychological thing as well at the same time," he said.
Shop workers have taken action in the past, some of it quite radical. Czech workers once staged a walk out in protest at Christmas music, while Austrian shop workers' union the GPA (Gewerkschaft der Privatangestellten) mounted a campaign about the music in 2003.
"When we started the campaign we wanted to change the reason that playing of Christmas carols happened two months before Christmas. It's not necessary we think," Gottfried Rieser, the man behind the campaign at the GPA told OUT-LAW. "The shop workers come to me and we talk about the problems in the shops and they told them one of the biggest problems in the time before Christmas is the playing of carols. We had meetings with the management of the [shops] companies and they told me there is no problem, they didn't see the problem."
"So we went to the broadcasters and newspapers and there was a lot of people, we started a campaign and it was a good thing," said Rieser. "Then the chairman of the board of Spar and I had a meeting, he told me of course I am right the campaign was very successful and he promised to me he won't play the music any more than three weeks before Christmas."
Though the legal barrier for proving psychological distress due to Christmas music would be high, the campaigners said they will not give up.
"Noise is often called the forgotten pollutant; I think piped music is the forgotten aspect of noise," said PipeDown's Rogers.
"All we are asking for is that the staff be given some opportunity to escape, maybe the music should be switched off at certain times, maybe there should be areas of quiet where staff can go during their breaks, it's not even regulated just now," said the Noise Association's Weedon.
The Austrian example will give campaigners hope. "Today we visited the shops and there were no Christmas songs, no carols. I'm very proud about it," said Rieser.
Rechtsanwältin, Senior Associate