Stories about politicians and councillors being caught up in scandals at work regularly feature in our national press. In such cases the individual generally resigns (eventually) following public pressure to do so but what happens when it happens to ordinary employees? What is the best tactic where an employee’s behaviour embarrasses their employer? Recent case law suggests that the best tactic might be to search their emails and social media posts…
Once such case concerned Mr Williams, a senior employee at Leeds United Football Club (the Club). Mr Williams had been made redundant by the Club but he was entitled to 12 months’ notice pay & contractual benefits of circa £200,000 under his contract. The Club therefore decided not to pay him his notice and set about searching his email account for evidence of gross misconduct that they could use to dismiss him without notice. They duly found that, five and a half years ago, he had received and forwarded an email which contained ‘obscene and pornographic’ images to a friend at Newcastle United. Mr Williams was subsequently invited to a disciplinary hearing. The Club conducted a further search of his emails and found that he had also forwarded the email to a younger, more junior, female member of staff and another male friend. As a result he was dismissed for gross misconduct and not entitled to any further notice payments from the date of the dismissal. The Employment Appeal Tribunal found that, despite the offensive email being sent over 5 years ago, his employer had only recently discovered it and was entitled to dismiss him even though it was actively searching for a reason to dismiss.
Another more recent case concerned an employee who had made a number of offensive comments about his supervisors and work on Facebook over the course of a few years. His supervisors were aware of some of the comments by Christmas 2012 and informed HR who were too busy to look into it. In February 2013 the employee, having already raised a number of grievances, raised a further grievance about various health & safety issues with his supervisors and his employer decided to invite him to a mediation session in May 2013. However, his supervisors emailed his Facebook comments to the mediator to show that the complaint was not one-sided. The mediation session was cancelled and the company investigated the Facebook comments (which, contrary to the employee’s belief, were not hidden by his privacy settings). The comments included a claim that he was drinking alcohol while supposedly on standby two years previously and offensive references to his supervisors and work. The Employment Appeal Tribunal found that the employer had followed a fair procedure and that the employee had been fairly dismissed him as a result of his Facebook comments.
The outcomes of these cases were dependent of their particular facts. If you are faced with a problem employee please contact us.