13 October 2016

Lessons from the U.S. election - when an old story causes new trouble

The 2016 U.S. presidential election has been like no other. Donald Trump has been embroiled in a series of controversies each of which might have been expected to derail other campaigns. Most of these have arisen from things Trump has said or done during the course of the campaign. But the latest, and most serious, relates to a private conversation that took place in 2005.

As is now well known, a recording emerged of Trump having a conversation with a TV presenter, Billy Bush, in which Trump makes lewd and derogatory remarks about women. The conversation was intended to be private, but was captured on a ‘hot mic’. Since the conversation has been made public, Trump’s poll ratings have apparently suffered and Billy Bush (who is a cousin of former U.S. president George W. Bush) has been suspended by the television network for which he now works.

Both of those are entirely understandable consequences. But what about an employer in a more conventional situation? Is it legally safe to, for example, dismiss an employee for historic misconduct that occurred outside the workplace? The answer is, in principle, yes. 

Where an employer is faced with misconduct outside the workplace, the key question is likely to be the extent to which that conduct affects the employer or affects the employee at work. Therefore, in the case of Post Office v Liddiard [2001] EWCA Civ 940, the Court of Appeal ruled that it was in principle fair to dismiss an employee who had been convicted of a criminal offence following his involvement in football hooliganism abroad. This was on the grounds that his actions had brought the Post Office into disrepute. 

The issue has also been considered more recently in the context of employees using social media. In British Waterways Board v Smith [2015] UKEAT/0004/15, the Employment Appeal Tribunal found that it was fair to dismiss an employee who had made derogatory remarks about his employer on Facebook. These included making insulting comments about his managers, stating that “I hate my work” and making a reference to drinking whilst away from work but on standby (which was prohibited). 

As always, however, it is a question of fact and degree. In the case of Whitham v Club 24 Ltd t/a Ventura ET/1810462/10, the employee who had posted various comments on Facebook - including “I think I work in a nursery and I do not mean working with plants” and “takes a lot for the b*stards to grind me down” – was also dismissed. Amongst other things, the employer was concerned that the comments might damage the relationship between it and one of its clients. In this case, however, the Employment Tribunal found that the dismissal was unfair. It noted that the comments were relatively minor and that there was no evidence that the employer’s relationship with the client had been or would be harmed.

The fact that the misconduct may have occurred some time in the past does not in itself seem to be a bar to the employer dismissing an employee. In the British Waterways Board case for example, the most serious of the employee’s Facebook postings had been made two years prior to his dismissal. Similarly, in Williams v Leeds United Football Club [2015] EWHC 376 (QB), a case which we have discussed previously, the High Court ruled that Leeds United were entitled to dismiss Mr Williams without notice after discovering that, five years earlier, he had forwarded an email that contained pornographic images from his work email account. The High Court was not persuaded by the argument that the seriousness of the original conduct was somehow reduced by the fact that Mr Williams had continued to work for Leeds United for over five years after it had occurred. 

That said, employers should not necessarily view the British Waterways Board and Williams cases as giving them free rein to dismiss an employee regardless of how long ago the misconduct occurred. There may be cases where the misconduct has been ameliorated by later good conduct or it can no longer be considered significant by virtue of the passage of time. More generally, any dismissal will need to be preceded by appropriate procedures, such as a reasonable investigation, if it is to be legally defensible. Subject to those caveats, however, serious misconduct is likely to be bad news for employees wherever or whenever it occurred. 

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