Once again there are no new EAT judgments for us to write about, however, we have found another story that has made headlines this week which is an employment law conundrum.
As some of you may be aware local football team Leicester City FC have been embroiled in scandal this week. Tabloid newspapers obtained an explicit video of three Leicester players, including the manager’s son, being racially abusive towards two Thai women who were also involved in the video.
To make matters worse the club is owned by a Thai business man and the video was filmed whilst the club were on an official visit to the country. Somewhat ironically Leicester manager, Nigel Pearson, is also an ambassador for the Kick It Out anti-racism charity.
The club, quite rightly, has suspended the three players involved whilst a disciplinary investigation is carried out. From an employment law perspective the investigation and potential outcomes open a rather large can of worms and the following issues will need to be dealt with;
– How media and social media coverage puts pressure on an employer to respond a certain way.
– How to handle family/work relationships to avoid nepotism.
– What to do when an employee’s personal views, beliefs or conduct come into conflict with the company’s.
We recently covered the case of GAME v Laws which highlighted how personal social media accounts can contribute towards a dismissal if they are not private. Therefore published media involving racist or general grossly inappropriate behaviour could also result in a dismissal.
Furthermore groups such as Racists Getting Fired, Yes You’re Racist and well-known e-petition lobbyists 38 Degrees actively encourage the social media community to put pressure on businesses to respond a certain way. If the employee has been found to have committed a gross misconduct offence then they can dismiss the employee and limit the damage of the negative publicity.
However, if the employee has been found not to have committed a gross misconduct offence then the employer is in a lose-lose situation. If they unfairly dismiss the employee they are liable for claims from the employee, if they don’t they will receive further negative backlash from the public.
The BBC were in a similar position recently whilst they investigated Jeremy Clarkson following steakgate. In this case there were petitions to both keep and sack Clarkson, a true Catch-22. To put the impact of Twitter campaign groups into perspective, Twitter has over 340,000 tweets published a day much of which is about trending news topics such as the above cases.
The issue of family-working relationships raised in this case is also a headache for employers. Many businesses employ family members from big businesses such as Rupert Murdoch’s News Corp to smaller businesses including PJH Law.
There are many advantages of employing family members but one of the key issues is that the family members employed have a professional relationship that is no different to that of a normal employee. In this instance not dismissing the manager’s son but dismissing the other employees involved could constitute wrongful dismissal and/or unfair dismissal as identical circumstances and disciplinary investigations would have yielded different results.
A further puzzle for the employer is not upsetting the manager, who is highly talented and difficult to replace, by sacking his son. The employer now has to delicately balance retaining a talented manager and treating all staff equally.
A final point is what the employer should do when an employee’s personal beliefs conflict with the employers. In this case it is a Thai owned company having employees who hold racist views. The recent ‘gaycake’ case of Lee v Ashers Baker Co Ltd found that a bakery discriminated against a customer when it refused to make a cake with a slogan supporting same-sex marriage is a high profile example.
Furthermore in Otomewo v Carphone Warehouse Ltd, two members of staff posted a homophobic status update on the claimant’s facebook page, without his permission or knowledge. Here, like in the Leicester case, the employer was vicariously liable for the harassment as it happened on company time. To solve this matter it is important to have a policy on conduct and clearly state the companies own views when it comes to issues such as racism, sexism or homophobia.
The take away points that employers need to learn from this is that:
– when an employee’s conduct creates a media storm that the investigation still needs to be fair
– any family/professional ties at an employer should not result in preferential treatment for the relative
– companies need to clearly set out their stall for issues such as racism so any misconduct issues that arise can be dealt with easily.