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Wake-up call: How to deal with employees going off message

13 May 2011

When employees overstep the mark it is vital to act reasonably, especially if using this as a basis for dismissal. Legal expert James Hall explains.

The Problem
Few can fail to have heard of the recent dismissals of John Galliano from Dior for anti-Semitic comments, or of Charlie Sheen from his TV show for remarks that included directly insulting his bosses.

Whilst not many companies can claim to employ the world's highest paid television actor, or one of the leading names in fashion, the issue of comments made outside of the workplace can be a particularly sensitive area for employers.

The Law
When dismissing an employee, it is important that it is for a potentially fair reason and that the employer has acted reasonably in treating this reason as the basis for dismissal.

Employers are given a relatively wide scope for such dismissals. If they feel that an employee has prejudiced their business or reputation, or has damaged trust and confidence, then there is a strong possibility that dismissal is a legitimate option.

In a recent case a pub manager, having been subjected to a "torrent of verbal abuse" by some customers, made some abusive Facebook entries, naming a number of these individuals. The tribunal found that her resulting dismissal was fair on the grounds that, whilst she had a right to freedom of expression, her public statements had damaged the pub's reputation. There had been a thorough disciplinary process and, although the tribunal said that it would have been minded to issue a final written warning, dismissal was within the range of reasonable responses.

In a different case, two charity employees working on assignment in prisons forwarded a racist and sexist eâ€'mail from their home computers, which informed readers that it was their "duty" to forward it on. The prison was made aware of this eâ€'mail and terminated the assignments of the individuals, who were then dismissed by their employer. The tribunal considered this reasonable, particularly because the eâ€'mail encouraged readers to circulate it, therefore turning a seemingly private action into a public one that had damaged their employer's reputation.

A different tribunal outcome was recently reached regarding an off-duty nurse. While helping colleagues restrain an unconscious patient in a violent fit, she found herself straddling his naked genitals and made a mildly lewd and humorous comment. After various appeals, it was found her dismissal was unreasonable given that there were no members of the public around to hear her, she had a clean record and the majority of the population would find her comment amusing. Therefore, there was no tangible damage to the hospital's reputation.

Expert Advice

Organisations must be aware of the need to take a reasonable view of employee actions and be flexible in their approach. As demonstrated in the case of the nurse, tribunals do not look favourably on jobsworthyness and, while her dismissal may have been reasonable if the patient's concerned family were looking on, the reality was that they were not.

It is also relevant that the same actions of different employees may have different effects on a company's reputation. Drunken high-jinks caught on TV of a junior accounts officer working behind the scenes of a large company may only warrant an informal chat from HR. Whereas the same actions from a senior employee with a public presence might be reasonable grounds for dismissal.

Check list
â- Draw up clear policies about what could happen to employees whose actions may reflect badly on the company; ensure that these stress the potential impact of out-of-work actions.
â- Ensure you have social networking policies that clearly state the dangers of seemingly casual on-line banter.
â- Review the types of action that may harm the reputation of your company and ensure that anyone involved in the disciplinary process is properly trained in how to assess the extent of any such damage.

Beware!
It is not possible to draw up a rigid set of rules to govern this type of behaviour. Be prepared to be flexible and mindful of the actual circumstances surrounding each individual situation.

Dismissal is a drastic step. If this is a consideration, ensure that you take a realistic view of the actual damage to the business and not just what could have happened. Consider whether a written warning may be a suitable alternative.

Contact
James Hall is a solicitor at Charles Russelljames.hall@charlesrussell.co.uk

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