By Andrew Knorpel, Partner in the Employment team
Corporate reputations are hard earned, but can be so quickly lost. It is therefore important to put in place the appropriate safeguards to maintain that reputation and to take appropriate action when it is or could be damaged.
Staff should be left in no doubt of the standards of conduct expected from them, whether it be in matters such as their direct dealings with customers, avoiding bribery and facilitation of tax evasion, security of data, use of social media or public statements. Policies and training should be the basic building blocks of reputational management here. However, employers should also be alert to enhancing safeguards where public attitudes challenge the appropriateness of outdated business practices, such as sexual harassment in the workplace or unjustified gender pay gaps (brought into focus by the requirement to publish information on the employer’s website).
If an employee acts in a manner which adversely effects or could affect an employer’s reputation, your policies and training materials will be at the forefront of assessing how you may fairly deal with the matter. If the employee’s conduct is at fault, then disciplinary action may follow. I have often seen language in a disciplinary policy such as “bringing the Company into serious disrepute”. It’s much better to refer to “conduct likely to bring the Company into disrepute” which not only makes it unnecessary to work out what “serious” means or prove disrepute, but also allows disciplinary action to be taken where you successfully prevented actual damage to reputation (or were just fortunate that damage did not occur).
Sometimes, an employee may be involved in circumstances damaging an employer’s reputation, but it may not be possible to conclude on the balance of probabilities that the employee is guilty of any particular wrongdoing. Recent cases of this type have included an indecent photograph of a teacher being made public without the employee’s knowledge and a senior manager having unproven allegations of child abuse made against him. If this is the case, then although the employee’s conduct is not in issue, it may be appropriate to consider dismissal for “some other substantial reason”, such as the risk of reputational damage.
When considering whether dismissal would be within the “band of reasonable responses”, an employer should be careful to take into account all relevant circumstances, such as the actual extent (if any) of reputational damage, the standards expected of a senior member of staff or someone who has direct contact with the public, the breach of any policy and the connection (if any) between the wrongdoing and the employer. If the employee is charged with or convicted of a criminal offence, this will not by itself give the employer carte blanche to dismiss. The Acas Code of Practice makes clear that you should consider the effect of the charge or conviction on the employee’s continued suitability to carry out his role, together with their relationship with the employer, their colleagues and customers.
And one final tip – although “loss of trust and confidence” is relevant at the stage of deciding on the appropriate disciplinary sanction in a case of proven misconduct, you should steer well clear of using this concept as a reason for dismissal.
The contents of this update are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this update. © Mundays LLP 2018.