The first game of the World Cup is scheduled to take place on 21 November 2022. Excitement is building. Social events are being organised by employers and between work colleagues themselves to view the games. And from that, sadly, problems can arise.
There are essentially two issues. Firstly, if the social event is organised by the employer, then the employer can find itself vicariously liable for the actions of its employees during the event. So, for example, if discriminatory remarks, perhaps on grounds of race (the World Cup does after all take place on the basis of National teams, and as such can give rise to Nationally motivated comments which can all too easily overstep the line from good natured banter into racial abuse) occur then the employer who organised the social event at which its employees made those discriminatory remarks could find itself as a defendant or co-defendant before the Jersey Discrimination and Employment Tribunal as a consequence, and if the complaint was upheld could find itself being ordered to pay damages as a consequence. In addition, and perhaps equally significantly for many organisations, the employer could suffer negative publicity and reputational damage due to the discriminatory behaviour complained of.
Secondly, even if the event is organised ‘out of work’ by the employees themselves, if any of those employees engage in discriminatory or other behaviour which would bring their employer into disrepute, then such behaviour, if proven, is likely to be a breach of the employee’s terms and conditions of employment, and could accordingly then trigger an investigation by the employer. Dependent on the result of that investigation, disciplinary proceedings by the employer against the employee may follow. Such a situation was considered recently by the Jersey Discrimination and Employment Tribunal in a case involving the SEB and Others. The circumstances in that case were that the complainant had socialised with a group of people including work colleagues one evening in St. Helier, following which two of their work colleagues made serious allegations against them to their employer concerning the alleged behaviour of the complainant during that night out. This in turn led to a protracted investigation of the complaints, and ultimately resulted in an informal warning being given to the complainant by their employer. The handling of the matter by the employer, and the various actions taken by it against the subject of the complaints, then resulted in the complainant issuing claims against the employer in the Employment and Discrimination Tribunal, which ultimately upheld a number of those complaints.
Whilst the issues arising within that case are unusually large, it does provide a powerful illustration of the effects for both employer and employee alike that can flow from what started as an otherwise apparently innocuous night out with work colleagues.
That may be an extreme example, but even if a complaint is found to be groundless there can still be a significant cost to the employer arising from the time and resources that it will be required to invest in order to carry out an appropriate investigation of the issues, together with any resultant disciplinary proceedings which may follow. These can tie up management time and HR resources, and distract from the day to day running of a business causing economic loss. And that is before the costs of any associated legal advice that may be required are taken into account.
So what lessons can be learned from the above? The reality of the situation is that employers cannot fully safeguard against the possibility that an employee will act in a way which is contrary to their terms of employment or which might bring the employer into disrepute, whether in the course of their employment or outside of it. What the employer can do, however, is to have robust terms and conditions of employment in place to ensure that what is, or is not, acceptable behaviour is clear to its employees, and that they appreciate that unacceptable behaviour whether in or outside of strict working hours may give rise to disciplinary sanction by the employer, potentially including immediate dismissal for gross misconduct in appropriate circumstance.
Such terms and conditions of employment can be fortified by the employer providing training to its employees to ensure that they understand what is required of them, and this can be particularly helpful in areas such as discrimination, where distinctions such as how discrimination can occur both directly and indirectly may not otherwise be properly appreciated. Such terms and conditions of employment, in conjunction with training, may increase the prospects of an employer being able to mount a successful defence to a claim against it as a result of inappropriate conduct by an employee, and simplify the investigatory/disciplinary process resulting from such conduct if it takes place, with a commensurate saving in management time and resources.
Seeking appropriate legal advice and guidance at an early stage can assist to avoid issues of the type highlighted above.
For legal advice please contact the experienced employment law team at Le Gallais & Luce who will be happy to provide an initial telephone consultation free of charge to ascertain whether your issue is one with which they can assist.
Please call the team on: 01534 760710, or alternatively contact Advocate Christopher Austin direct at: caustin@lgl.je