Leaving disgracefully – damage limitation

04 January 2013
Leaving disgracefully – damage limitation

The Problem Recent press coverage detailed the case of an ex-employee who decided to send a damning "leaving speech" eâ€'mail to all members of staff as he walked out of the building. The eâ€'mail detailed his alleged grievances with his manager, including claims that his manager had made sexist and racist comments, and "outed" his manager's alleged intimate liaisons with a female colleague in the office.

In addition, the eâ€'mail then went viral after it was posted on social networking sites.

The company was said to be saddened by the way the ex-employee handled his grievances and were understood to be in discussions with those affected.

The problem for employers is that social media tools enable individuals to distribute views and content to a large and uncontrolled range of people. How should an employer react when this happens? What can be done to minimise the risk to an employer's reputation?

The Law An incident such as this gives rise to a number of issues in the workplace and the key in this situation is for employers to act quickly to tackle the allegations and minimise further damage. The first priority is to deal with the departing employee.

Should the eâ€'mail be treated as a grievance, even if written by someone no longer in employment? The short answer is "yes", because there is a risk that the departing employee may, within three months from the effective date of termination of employment, bring a claim for constructive unfair dismissal and/or discrimination and a conversation to "clear the air" may certainly help minimise this risk.

However, it is currently uncertain whether and in what circumstances employers would be penalised for unreasonably failing to deal with a grievance from an ex-employee in accordance 
with the ACAS Code of Practice on Disciplinary and Grievance Procedures (which could 
result in an uplift of up to 
25% of any compensation, 
if awarded).

A more lenient view may be taken by an Employment Tribunal where the employment has already ended. Best practice would suggest employers deal with it as if it is a grievance to minimise the risk, which involves investigating the complaint thoroughly and, provided the ex-employee is willing, trying to arrange for a formal meeting to be held with them without unreasonable delay, at which they have the right to be accompanied and the right to appeal against the outcome.

Expert advice Consideration must also be given to the remaining employees. Any accusations of misconduct should be investigated. If an employee is subsequently found guilty of any misconduct, disciplinary action may be taken, which may involve a verbal or written warning, demotion or special training, depending on the seriousness of the conduct.

Prudent employers might also consider the impact of the eâ€'mail on any victims who might have been "named and shamed" and who, as a result, may have claims against the employer.

Finally, the rise of social media is making it much harder for employers to regulate employee behaviour, whether or not the employee is using the employer's equipment.

The main risks for employers are damage to their reputation, disclosure of confidential information and potential vicarious liability for any discriminatory behaviour or "cyber bullying" by an employee if the tribunal considers the employee was acting "in the course of employment". Derogatory or defamatory comments via any form of social media should therefore be regulated in the same way as any other conduct and/or performance management issue.

To safeguard against potential liability, it is important for employers to show that they have taken all reasonably practicable steps to prevent any harmful behaviour, which includes having policies on electronic communications, equal opportunities and bullying and harassment in place.

In particular, employers should ensure that an effective electronic communications policy includes clear guidelines on "acceptable use", including on termination of employment, reminding employees about dealing with confidential information and the extent that personal use is allowed (in the workplace or at home), highlighting the consequences of non-compliance and make clear the nature and extent of monitoring.

Employers should also seek to include social networking in their discipline and grievance policy, giving clear examples of what will be regarded as gross misconduct.

Employers should also ensure that any training should clearly indicate that online behaviour, even outside the workplace, should conform to appropriate standards.

To do checklist â- Deal with all grievances consistently and without delay.
â- Investigate any accusations or allegations of misconduct and deal sensitively with potential "victims".
â- Keep all written records, including minutes of all meetings and correspondence.
â- Communicate any decisions effectively and promptly.
â- Have an effective policies on electronic communications, equal opportunities and bullying and harassment in place and ensure they are communicated to all employees and kept up to date.
â- Provide training and support for managers to enable them to deal sensitively when managing people, to minimise opportunities for complaints.

Beware! The fall-out of such a damning "send all" could be felt far and wide. Whatever action is taken, this is a timely reminder that employers need to have clearly communicated procedures in place to regulate employee behaviour, setting out clear rules around what is and what is not acceptable as a medium of any form of communication by employees.

Contact Katie Holden is an associate 
at Charles Russell LLP eâ€'mail: Katie.holden@charlesrussell.co.uk

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