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| Crime and Punishment |
| Wednesday, 14 March 2007 | |
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Gareth Chadwick asks the experts where employers stand when their staff's private lives become a little too public.
Employees. Who’d have them? If they’re not skiving off sick, they’re snorting cocaine in the toilets, slagging you off in internet chat rooms or carousing with prostitutes in seedy motels. And that’s just over lunch. Never have the extra-curricular activities of employees been such a headache for the region’s bosses. Last year, Coronation Street actor and BBC Radio DJ Craig Charles was suspended after photos were published reportedly showing him taking crack cocaine as he sped up the motorway in the back of his chauffeur-driven car. In January this year, an East London law firm found itself facing a possible £58,400 fine after an office relationship went wrong and one of its lawyers unfairly sacked his PA-cum-mistress after finding out she was seeing someone else. Or there is Steve Beall, the 20-year-old junior manager with chocolate company, Thorntons. He was suspended and his chief executive was forced to issue a public apology in December after Beall, on secondment in Barrow-in-Furness from Newcastle, labelled the town a “shithole” that was “rough” and “boring” on his public page on internet social network MySpace.com, only to find his comments splashed across the front page of the town’s main newspaper shortly after. Such cases illustrate the seriousness with which employers take the extra-curricular activities of their employees. But in the swamp of legislation around equality, diversity, sexism, racism and discrimination, the risks of mishandling an incident are often as great as, if not greater than, the incident itself. “Keeping a check on what staff are getting up to has always been an issue for employers, but actually dealing with it is a minefield,” says Deborah Hely, employment law partner at law firm Beachcroft. “The basic principles are that if what the employee is doing means that they cannot perform their duties to the standard expected, or if it presents a genuine commercial risk to the business, then the employer can interfere.” Using software to monitor the online activity of staff, such as the emails they send and the webpages they view, is standard practice, as is monitoring phone calls. But it has to be backed up by a clear policy to which all employees are signed up as part of their employment contract. The boss can’t just turn up one day and decide he wants to check what websites his staff have been looking at during the previous month or at least, if he does, he can’t rely on those results as evidence in any future disciplinary procedure. Furthermore, the type of monitoring has to be relative to the nature of the risk. A company that introduces telephone tapping because it is worried that staff are making too many personal calls would get little sympathy from an employment tribunal, explains Sue Morrison, head of employment law at Mace and Jones solicitors. “It has to be proportionate. The employer could get the same information from just analysing a list of the numbers that staff were calling, without needing to listen to their conversations. It is about human rights. The monitoring you are allowed will depend on the reasons why you want it and the risks behind it,” she says. Hence, public transport companies can legitimately expect their staff to undergo random drug and alcohol tests, given the risk to public safety of a drunk or drug-impaired bus driver. But a financial services or telemarketing company would face enormous problems trying to convince the authorities that such measures were appropriate. It is also linked to the employee’s expectations of privacy. You can’t tap the phone of the accountant that you think is embezzling company funds without telling him first, because he has a reasonable expectation that his phone calls are private. All isn’t lost, though. You could follow him instead, because there is no expectation of privacy when you are walking down the street or playing a round on the golf course. But even if you find out that a member of staff is doing something of which you don’t approve, it does not give you free rein to fire them. In taking action against misbehaving staff, employers have to prove that their actions are justified and fair. For example, the employer that sacked a qorker who had called in sick but whose photograph then appeared on the front page of a national newspaper at a public disturbance, wearing his clearly identifiable work jacket, was found to have acted properly in dismissing him. But it was the fact that it was during work hours – and therefore a breach of contract – that was the clincher, not the nature of the disturbance or the link to his employer. If the demonstration had been in the evening or at the weekend, Hely says that the case would not have been so simple. In Accrington, the head teacher of a church secondary school is currently facing a dilemma after the private life of one of his teachers became a local scandal. English and drama teacher Samantha Goldstone was suspended following complaints from parents who were concerned about her work as a part-time author of gothic fiction books, books which, according to her own website, contain “adult content with vampire eroticism, violence and blood lust.” Her personal website included images and links to her debut novel which features a 17th-Century vampire who lusts after women after being drugged with ecstasy. Says Hely, “the action you can take depends on how serious the incident is and how great the damage to your reputation or the employee’s ability to do the job. The more distasteful or the more violent, the more likely it is to be reasonable to dismiss.” Morrison recalls a case where email monitoring software revealed that an employee was emailing prostitutes, getting quotes, requesting specific “services” and going to meet them, all during work time. “He would tell bosses he was off on a site visit, and nip back home for trysts,” says Morrison. “My client was disgusted and wanted to sack him. I said you can’t sack him because you’re disgusted, you have to sack him for other reasons. As it happens, since it was all done during work time he could sack him for breach of his duty of fidelity,” she says. Ryan Cheyne, head of human resources at pet superstore chain Pets at Home, says that the basic premise has to be that what staff get up in their private lives is up to them but if it is during work time, or if it comes into the public domain and potentially has an impact on their working lives, It becomes the employer’s business. “In retail, it is not uncommon for employees to have one or two additional part-time jobs, particularly students. In principal, that isn’t a problem as long as they are still able to fulfil their duties with us satisfactorily. But if it interferes with their work here, then we have to take action,” says Cheyne. Pets at Home has a secondary employment policy. It obliges employees to be open about other jobs they have and, in effect, gain permission from Pets at Home. It is the same kind of policy which a manufacturing company in Lancashire was able to bring to bear when concerns were raised about a member of staff being over-tired on the job. A firm-wide survey of employees’ second jobs revealed that the employee was working as a strip-o-gram at night, leaving them exhausted at work the following day. Because the stripping job was clearly having an effect on their performance at work, and they were potentially putting the employer in breach of the Working Time Directive, the employee was legitimately asked to ditch the stripping or lose their job. It isn’t always so clear cut. Christopher Davies, a solicitor with Halliwells, recalls a case in Lancashire in 2003 which revolved around a probation worker who was dismissed due to his outside activities. The employee, Mr Pay, performed live naked fire shows in hedonist and fetish clubs and marketed bondage, domination and sadomasochism products for sale through the internet. Mr Pay was open about his activities but asserted that they did not bring the probation service into disrepute. His employer disagreed, first suspending and then sacking him. In the end, the employment tribunal agreed and his dismissal was upheld. But it was close. When drink and drugs are involved, the picture gets murkier still. Drugs and the workplace is an increasingly contentious issue. According to the 2003/04 British Crime Survey, there are at least four million 16 to 59-year-olds who take illegal drugs regularly. Given that the total UK workforce is around 29 million, that is well over one-in-ten of the workforce. It is easy to understand why employers are increasingly twitchy about the problem. Employers have a legal duty to ensure the health, safety and welfare of their staff, but Alison Loveday, managing partner and head of employment at Berg Legal, says that “to dismiss an employee immediately when a drink or drug problem comes to light would almost certainly be deemed unfair. If you suspect an employee has a problem, you have a duty to offer help and support, implementing your disciplinary procedure only as a final resort.” At Pets at Home, Cheyne says the focus is on creating a supportive environment where staff feel comfortable discussing issues with ,management before they go too far. He says that there is an employee welfare programme where staff can get free counselling, support and advice. “The more open your culture is and the more tuned in you are to people’s problems, you can normally intervene early on and get them some help. Where it all breaks down tends to be when management don’t have a clue what their employees are up to and then over-react when it comes to light,” says Cheyne. And over-reacting can be expensive. Worse still, you could end up ravaged by an ecstasyfrazzled Accrington vampire.       |
