Robert Lewis, from our Employment team, and Tom Rudkin, from our Reputation Management team, explore the considerations for employers who have found themselves inadvertently caught up in the Chelsea fans Paris Metro incident.
One of the major news stories of this week has been the behaviour of travelling Chelsea supporters who were caught on camera singing racist chants and pushing a black member of the public off a Paris Metro train. While the original story focussed on the behaviour of the fans as a group, the story has now become about some individual fans themselves and has captured not only those individuals but also the places at which they work.
Yesterday, we learnt that one of the fans identified on social media, 21 year old Josh Parsons, has been suspended from his job at a Mayfair-based financial brokerage pending a full investigation, although the firm’s founder also made a public statement in defence of the employee. There is no suggestion at present that Mr Parsons was involved in either the pushing or the chanting but it appears that he may have been in the train carriage where the incident took place.
What on earth is an employer supposed to do in this situation? On the one hand, it is possible that Mr Parsons was simply caught up in the wrong place at the wrong time. On the other, if he is later found to have been involved in the incident, there is the potential for serious reputational damage to the company and possible difficulties in the workplace. It goes without saying that employers cannot be seen to do anything that might be construed as indifference to, or worse still condoning, racist behaviour.
An employer is therefore placed in an invidious position. The incident in question took place outside the workplace and the nature of the employee’s involvement, if at all, is at this stage unclear.
The employee’s rights
We do not know how long the employee in question has been employed. If the employee has less than two years' continuous employment, the employer will have much more flexibility since the employee will not have a right to bring ordinary unfair dismissal claims. In such circumstances, the employer is likely to only be concerned by the employee's contractual rights (for example, whether or not to give notice). However, the financial risk in this situation is still likely to be fairly low.
The considerations are different if the employee has unfair dismissal rights. If this is the case, the employer will need to take care both in relation to how it investigates the incident and ultimately how it chooses to respond.
Misconduct outside the workplace
Presumably, should the employer decide to take disciplinary action against the employee it would be relying on the potentially fair reason for dismissal of “misconduct”. It is well established that misconduct dismissals are capable of being justified based on conduct that occurred outside of the workplace. The key issue for the employer is whether the conduct pertains to the employment relationship or could be thought to affect the employee when he is doing his work. The particular questions the employer should ask are whether the conduct affects the employment relationship because of (1) the particular nature of the work; and/or (2) the damage caused to the employer’s reputation.
A fair and thorough disciplinary investigation should therefore be followed to determine whether the alleged misconduct took place and, if so, the extent to which it has affected the employment relationship.
On the face of it, and with limited facts at our disposal, it would be hard to argue that this conduct, if proved, has an impact on the particular nature of the work (in this case, a financial brokerage). For example, this case could be distinguished from a case such as Gosden -v- Lifeline Project Ltd ET/2802731/2009, where the dismissal of an individual working in prisons for forwarding a racist email on his home computer was found to be fair on the grounds of damaging the employer's reputation where the employee worked closely with inmates, many of whom were from ethnic minority backgrounds.
The second question of the employer’s reputation is the more pertinent one. Clearly, this may have, and arguably already has had, an impact on the employer’s reputation, which they would want to be able to rectify. For instance, the financial brokerage in question has already been subjected to some unwanted media coverage by the very fact of its being named in the national press. And whilst, as noted above, there is no suggestion at this stage that Mr Parsons was involved either in the pushing or racist chanting, the unfortunate reality is that his apparent presence on the metro train in question has inevitably cast the spotlight on his employers.
Moreover, one strongly suspects that, if (hypothetically speaking) he were ever shown to have been complicit, his employers may want to dismiss him. Apart from anything else, the active involvement of an employee in this kind of activity would potentially raise some very damaging questions (whether legitimate or not) about the overall culture and values of the organisation. Such questions would clearly need a proper response, both from a general PR perspective but also in the form of an appropriate sanction for the employee. And it is difficult to imagine, given the coverage the story has already generated, that anything less than a dismissal would suffice in so far as public perceptions (both within and outside the company) are concerned. In such circumstances, a dismissal could be within the range of reasonable responses.
The unreported Court of Appeal case of Post Office v Liddiard has the most obvious parallels with this situation. The Court of Appeal held that it may be fair for an employer to dismiss an employee because of press coverage in relation to football hooligan offences where that employer dismissed on the grounds that the employee’s conduct outside the workplace brought the employer into disrepute.
In the present case, the activities of the fans involved have led to plenty of calls for criminal prosecutions and the Metropolitan Police has already indicated its willingness to assist. If the employee is investigated by the police and subsequently charged or convicted, does that change the considerations for the employer? The answer to this question is both yes and no. There is no general rule that an employee ought to be dismissed if they are investigated and charged with a criminal offence. A criminal charge or conviction would not normally, in and of itself, be sufficient reason for disciplinary action. However, any criminal considerations will feed into the employee’s suitability to do their job and their relationship with the employer, colleagues and customers. Ultimately, an employer is expected to carry out its own assessment and make its own decision on the facts available.
The timing of any investigation and how it might dovetail with any police investigation is a complicated one. We have dealt with some of the issues that might arise concerning timing in a previous blog post.
Lack of evidence
An entirely plausible outcome of an investigation could be that the employer is unable to establish conclusively whether the employee was involved in the actual racist conduct. In which case, dismissal may fall outside the range of reasonable responses for a misconduct dismissal. This would not necessarily preclude a fair dismissal, and the employer could potentially argue "Some Other Substantial Reason" for dismissal under the Employment Rights Act. For example, they could cite pressure by a third party if pressure came from a client of sufficient importance and the threat was sufficiently serious. Alternatively, the employer could argue reputation risk but would need tangible evidence that it was genuinely losing clients' confidence in not dismissing the employee and those clients were of significant importance to the business.
In any event, if the employer continues to receive negative publicity, it may take the view that the risk of an unfair dismissal claim may be preferable to being tarnished with a racism scandal particularly since compensation would be limited to one year's pay.
Establishing the facts as quickly as possible should be the key concern from an employment perspective. The way in which an employee should be treated will vary considerably depending upon whether, on the balance of probabilities, the employer can establish that they were actually involved in the incident in question.
Of course, establishing the facts does and should take time, given the potential consequences for the employee. In this context, it is important that an organisation takes proactive steps to make clear to the public that it is taking the situation seriously. Radio silence is likely to achieve little other than creating a vacuum for the media to fill with questions and criticism about a perceived lack of activity. As such, the often-used "no comment" approach is unlikely to do an employer any favours.
In the present case, Mr Parsons' employers have sensibly avoided the vacuum effect by suspending Mr Parsons pending "a full and thorough investigation". In addition, they have answered any questions that might have arisen about the organisation's culture by explicitly stated that "We are utterly opposed to racism in all of its forms and would never tolerate racist conduct among any employee". In doing so, they have gone a long way to taking the sting out of the story in so far as it relates to them. And provided of course that the investigation is conducted properly and appropriate measures taken, if necessary, they can hope to avoid further unwanted coverage. The same of course cannot be said for the perpetrators themselves.