Protecting An Employers Reputation
Published On:Tuesday, September 25, 2018
Protecting an employer's reputation.
Employees, whether the public face of an organisation or behind the scenes are clearly the key to an employer's reputation i.e. how it is perceived by the public, its customers, investors etc. Firms with a positive reputation will attract better people and are perceived as providing greater value and have more loyal customers. Employment law recognises that reputational protection is a legitimate interest for employers. Potential damage to an employer’s reputation can be a fair reason to dismiss someone and conduct that brings a company into disrepute is often listed in a disciplinary policy as gross misconduct. A dismissal could be under "conduct" or "some other substantial reason", (SOSR), whether the dismissal is fair will depend on a number of factors.
Is the employee to blame?
If the employee is at fault then it will usually be appropriate to start the disciplinary process for misconduct or in serious cases, gross misconduct
Harris v Secretary of State for Justice
H was a Prison Officer who was supervising a prisoner who had been admitted to hospital. Contrary to prison rules he removed the closeting chain and allowed the prisoners girlfriend to be present in the wet room whilst the prisoner had a shower. A few months later The Sun newspaper printed a front-page article alleging that the prisoner had been permitted to have sex with his girlfriend. The article was accompanied by a photo of the prisoner naked in the shower. Following an investigation H was dismissed for gross misconduct for failing to obey written instructions and for discrediting the prison service.
The Employment Tribunal held that this fell within the range of reasonable responses. H had breached the rules about supervising prisoners in such circumstances. This allowed photos to be taken that were published in a national newspaper which brought the Prison Service into disrepute.
If the employees fault is unclear or unproven but he/she had been involved in the activities damaging the employers reputation then it may be possible to dismiss on the grounds of SOSR as opposed to conduct. But employers should be very careful about which label to attach to avoid a claim for unfair dismissal.
Amey v London Borough of Barking & Dagenham
Mr Amey was an Assistant Head Teacher who was dismissed for gross misconduct when a photograph of him sitting naked in a chair circulated on Facebook. The photo was taken by his wife and he had asked her to delete it immediately which she thought she had done. However after she took her device to be repaired the photo resurfaced on Facebook.
The Employment Tribunal held that A's dismissal for gross misconduct was unfair. While the local authority justifiably considered that the photo potentially brought it and the school into disrepute, there were no reasonable grounds for believing that A had done anything wrong or failed to do something he should have done.
As indicated by a police report, he was the unfortunate victim of circumstances. However the Tribunal also found that had the school dismissed A for bringing it into disrepute, ie some other substantial reason, (SOSR), and followed a fair procedure, dismissal would have been fair. With that in mind, compensation was limited to the basic award and notice pay he would have received had a fair procedure been followed.
Has damage occured?
Employers should be realistic in their assessment of reputational damage and avoid over-reacting.
Connell v Coral Racing (Accounts) Ltd
Coral Racing Ltd, a betting organisation, provided betting odds to an extremely important client S, via a text service.
In June 2009 when CR was in the process of introducing a new, more efficient text service, C sent a message to S apologising for the delay and explaining that the team was understaffed. After S subsequently contacted CR for an explanation C was given a written warning on the basis that his comment about understaffing had brought it into disrepute. C resigned and the ET upheld his claim for unfair constructive dismissal. In its view no reasonable employer could have concluded that the relationship between S and CR was undermined by C's comment. Indeed there was no evidence of any actual impact: the relationship had continued without any ramifications.
In the circumstances, disciplinary action was found to be totally unreasonable - a reasonable approach would have been to hold an informal discussion with him about client communication.
In any dismissal situation the employer must follow a fair procedure including dismissals for bringing the employer into disrepute.
In Molloy v Liverpool Community Health NHS Trust, M worked as an administrator for the Trust. In her spare time she was a sex worker and adult video actress who appeared on pornographic websites. When the Trust found out they suspended her for 'behaving in a manner that would not be acceptable in any situation and bringing the Trust into disrepute.'
An investigation was carried out but M was too ill and distressed to assist. Matters were left in abeyance until the Trust became aware that some members of staff were upset that M was still employed and were threatening to go to the press to expose the situation. Concerned about the potential reputational damage, the Trust gave M a short deadline to resign, failing which it would dismiss her. Eventually M resigned.
The ET found that the pressure placed upon M meant that she had actually been dismissed. In its view the reason behind the dismissal was not M's conduct but the threat from staff to go to the press and the consequent pressure on the Trust to deal with the situation. However, that threat of media interest was not a fair reason to dismiss and since the trust has also NOT followed a fair procedure, M's dismissal was unfair.
The ET concluded that M's outside activities did have the potential to bring the Trust into disrepute and she knew that her actions were likely to be frowned upon. Furthermore, her contract stated that she needed the Trust's permission to do other work and that almost certainly would not have been given.
Therefore the ET found that if M had returned to work and had been taken through a proper procedure the Trust would have been entitled to dismiss her for gross misconduct on the basis that her conduct brought the Trust into disrepute. In light of this the ET reduced her compensatory award.
Where an employee has been charged with or convicted of an offence, employers will often be concerned about damage to their reputation and may contemplate taking disciplinary action as a result. Before going down that route employers should be aware that the Department for Enterprise Code of Practice on Disciplinary and Grievances, paras 25 and 26:-
The Code states that consideration must be given to what affect the charge or conviction has on the employee's suitability to do the job and his/her relationship with the employer, colleagues and customers.
Where the charge or conviction has no direct bearing on the employee's job, it may still be legitimate to dismiss him/her because of the potential for damage to the employer's reputation.
A v Secretary of State for Justice
‘A’ worked as an administrative assistant in the prison service for almost 10 years. On a night out, she got into an altercation with a nightclub bouncer. She accepted a police caution for assault, having been assured by the police sergeant that there would be minimal repercussions for her job. However, she was dismissed for bringing discredit on the prison service, which was 'likely to create an adverse effect on public confidence in the service.'
The ET considered that the prison service had reasonable grounds for concern about the likelihood of reputational damage and loss of public confidence. It took account of the employer's disciplinary procedure - which included as examples of gross misconduct 'receipt of a police caution for any offence of violence' bringing discredit on the service - together with the high standards required of civil servants in general. The ET observed that not all criminal convictions or police cautions will inevitably lead to dismissal but in the circumstances, given the employers reasonable concern about the effect on public confidence were the details of her police caution to become known, it could not be said that the dismissal fell outside the band of reasonable responses.
Employers are entitled to expect employees to use social media appropriately so as not to damage the organisation's reputation, even outside work.
Gibbins v British Council
G was Head of Global Estates for the British Council, a charity governed by Royal Charter. G believed in republicanism ie that the monarchy has no legitimate role in modern democracy. One Sunday afternoon at home, G noticed that some of her Facebook friends were in a conversation about a 'meme,' a photograph of Prince George with the comment, " I know he is only two years old but he already looks like a f**king dickhead."
G made a number of comments to the conversation including "that cheeky grin is the (already locked-in) innate knowledge that he is Royal, rich, advantaged and will never know any difficulties or hardship in life."
G had set her privacy settings at their highest and understood that her posts were only visible to her 150 Facebook friends. However The Sun newspaper was alerted to G's comments by a reader and contacted the Council for its views, bearing in mind 'the close relationship between the Council and the Royals and that your organisation holds a Royal Warrant.'
The Sun subsequently printed an article with the headline
'Prince hit by vile rant of boss paid to promote Britain.' The Council instigated disciplinary procedures against G and she was dismissed for gross misconduct, on the basis that she had recklessly posted comments on Facebook, which had brought the organisation into disrepute.
G claimed unfair dismissal, as well as direct and indirect discrimination because of religion or belief under the UK Equality Act 2010, but all three claims were rejected by the ET.
With regard to discrimination, while the ET agreed that G had a philosophical belief borne out of an opposition to inherited wealth and privilege, it concluded that it was not the expression of republican belief that led to her dismissal. Rather, it was she had associated herself with a distasteful and personal attack on a small child. Therefore she had no claim for direct discrimination.
In regards to indirect discrimination the ET found that it was arguable that the Council's policy of not allowing employees to express political views in a public forum might be a disadvantage. Nevertheless the ET concluded that the policy was objectively justified by the legitimate aim of maintaining public trust in the Council reputation as an independent, apolitical organisation representing British values.
Her actions led to a media storm which went beyond outrage at G and widened to focus on the legitimacy of how the Council conducted its operations.
The manner in which G expressed her beliefs was not consonant with her employer’s values. G had acted unwisely and particularly as the Council had warned employees about the illusory privacy on social media. In any event she had posted to 150 people, enough to be regarded as a section of the public and too many for her to be confident that they would all agree with her.