August 2018 bulletin
A massive thanks to everyone who contributed to my fundraising efforts for Hope House children’s hospice that I completed on Sunday 5 August – just! It was a hilly ride and it was very, very hot! I have updated my JustGiving page at https://www.justgiving.com/fundraising/David-Parry14 – if you have not yet contributed and would like to do so, please visit that page.
I thought I’d do something a little different over the summer. Rather than a summary of the law affecting businesses and staff, this is a focus on protecting an employer’s reputation. Your reputation is of prime importance; customers will move and prospects won’t convert if an internet search reveals negative information about you or your employees.
What happens when an employee does something that you, as the employer, feel damages the reputation of the business sufficiently as to deem it worthy of dismissal? Damage to reputation can be a potentially fair reason for dismissal under employment law, but there are several things you need to think about first.
The first consideration is whether the employee was to blame for any reputational damage caused. If it is clear that the employee is at fault, disciplinary proceedings may be instigated and a conduct dismissal may follow. In the case of gross misconduct being proven, summary dismissal may be appropriate. If fault on the behalf of the employee is unproven, it may still be possible to dismiss for some other substantial reason.
The case of Amey v London Borough of Barking and Dagenham highlights the importance of correctly categorising a dismissal for reputational damage. In this case, an assistant head teacher’s wife took a photo of him naked, in an aroused state. He asked her to delete the photo and she thought she had. However, after taking her phone to be repaired, the photo appeared on Facebook. The teacher was dismissed for gross misconduct. The tribunal held that the dismissal was unfair but acknowledged that if the local authority had followed a fair procedure and dismissed for some other substantial reason, it could have been a fair dismissal. There were no reasonable grounds for believing the teacher had done anything wrong, despite that fact that there had been damage caused to the reputation of the school.
The second consideration is whether any damage has actually occurred. This sounds obvious, but tribunals sometimes think that employers can overreact to a minor incident where no reputational damage has taken place. In Connell v Coral Racing, an employee sent a message to an important client apologising for a delay and explaining that this was as a result of understaffing during a period of service upgrade. The client then contacted the company for an explanation. The employee was given a written warning as his comment about understaffing brought the company into disrepute. He resigned and claimed constructive dismissal. The tribunal upheld his claim as, in its view, no reasonable employer could have concluded that the client relationship was damaged by the employee’s comment.
Thirdly, as with any disciplinary and potential dismissal situation, a fair procedure must be followed.
If an employer finds out that an employee has been charged with (or convicted of) a criminal offence, concern about reputational damage may lead to disciplinary proceedings. The effect that a criminal charge or conviction has on an employer will often depend on the job role of the employee. But even if the charge/conviction does not directly impact the job role, it is still possible to dismiss fairly for reputational damage.
In A v Secretary of State for Justice, a prison administrative assistant got into a fight with a bouncer on a night out and was held overnight in a cell. He accepted a caution for assault, and was subsequently dismissed. The tribunal noted that a caution will not be sufficient for dismissal in all cases, but in this particular case, the discrediting of the prison service in the public eye coupled with the high standards generally expected of civil servants was sufficient. The dismissal was fair.
The situation is slightly different where an allegation is unproven; it is still possible to dismiss but a more rigorous investigation should be carried out. In Leach v Office of Communications an employee of Ofcom was dismissed upon the discovery of unproven child abuse allegations. Though it did not directly impact the job role, Ofcom had child protection responsibilities and it was therefore potentially severely damaging to their public reputation. This risk constituted some other substantial reason and the dismissal was fair.
There is an expectation that public facing employees will conduct themselves in a professional and courteous manner. Should they fall below that standard, they may find themselves the subject of disciplinary proceedings.
In Brown v Town Centre Car Parks, a car park attendant was dismissed following an allegation of bullying and harassment made by a member of the public. Dismissing his unfair dismissal claim, the tribunal noted that Mr Brown operated in a public place wearing a branded uniform and therefore his actions were likely to impact the company’s public reputation.
Employees in safeguarding roles must take extra care to maintain their professional boundaries and avoid abusing their position, as they will be working with vulnerable people. Any conduct that contravenes those expectations will expose the employee to disciplinary proceedings.
In Probert v The London Borough of Sutton, a music teacher was dismissed for gross misconduct for causing damage to the reputation of the school. Mr Probert had commenced a relationship with an 18-year old pupil, was Facebook friends with several students (including some under 16 years old) and consumed alcohol with the older students (over 18-years old) on school trips. Quoting national guidance, the school dismissed him sating that he had a responsibility to maintain public confidence in his ability to safeguard the children’s welfare. The tribunal held the dismissal was fair.
Social Media and Activities Outside Work
Social media is an ever-increasing problem for employers and one that is not easy to manage. Whilst the actions of employees outside of work are not generally to be governed by their employer, employers are entitled to expect a certain level of restraint when employees post on their social media. Businesses should ensure there is a robust social media policy in place and that employees are aware of the standards expected of them.
In Gibbins v British Council, an employee with republican beliefs was dismissed for derogatory comments made on her Facebook account about Prince George. Despite her Facebook account being ‘private’, The Sun managed to get hold of the offending comments. The dismissal was held to be fair and her discrimination claims were also unsuccessful. The important factor here was that the British Council is a charity governed by Royal Charter and therefore the Council was brought into disrepute by her comments.
It isn’t just social media that employees need to be careful of outside of work; their social activities can also have consequences for their employer.
In Lawrence v Secretary of State for Justice a manager was dismissed when it was discovered that she was involved in the creation of erotic images in her spare time. A co-worker discovered the sexually graphic images online and reported them to management. The creating and posting of these images breached the civil service code of conduct and could have resulted in reputational damage. Ms Lawrence was suspended and subsequently dismissed. A tribunal found the dismissal reasonable due to Ms Lawrence’s high-ranking position, the resulting breach of trust and confidence and the risk of reputational damage.
No doubt you’ve heard of glassdoor, the review website that collates employees’ views of the company they work for. Unfortunately, people generally don’t take the time to write positive reviews. Any ill-feeling on the part of an employee who feels hard done by when they leave your company may turn to the internet to vent their frustration. For those unfamiliar with glassdoor, I recommend taking a look. Go onto the website, search your company and see what your current and ex-employees think of the business. This can be a helpful way to combat issues that you may not even be aware of. Amongst other things, your company will have a star rating out of 5, a percentage of those who would recommend the company to a friend, and reviews listing the pros/cons of working there.
So what proactive steps can you take? Firstly, you could create a free glassdoor account and respond to the reviews to show that you take the feedback on board. Second, consider asking current employees to leave reviews; positive feedback can go a long way to counteract the negative feedback. But most importantly, do not end up participating in an online sparring match with an employee; contact them directly if you think there are ongoing issues that need addressing.
There are some steps you can take to reduce the chance of employees saying negative things about your business.
1. Ensure you have a robust social media policy – in the current climate, much of the conduct likely to damage your reputation will take place online. Tweets and Facebook posts can rack up hundreds of thousands of views in a matter of minutes; by the time a post is deleted, the damage is already done.
2. Train managers in fair recruitment policies – reduce the risk of recruitment mishaps. Several stories have made the news recently where managers have accidentally forwarded emails on to applicants containing their personal (and often distasteful) feelings towards an applicant.
3. Have clear guidelines setting out the standard of behaviour you expect from employees outside the workplace. This may include their behaviour at work-related social events, or when entertaining clients.