What would you do if you found you employed a porn star?

The heady combination of sex and employment law much beloved by the press came to the forefront in a recent case involving an NHS worker who claimed unfair dismissal after her bosses found out she appeared in pornographic movies. Although the judgment in the case is still awaited*, it does raise a lot of questions about how far an employer can go in regulating the behaviour outside work of employees.

The simple facts of the case are fairly straightforward. Ms Molloy was employed as a medical secretary to an NHS consultant. Although she would have access to a lot of patient information, she would rarely deal with or be seen by patients – it was purely an administrative role. There appears from the press reports to have been no issues with her work.

However, outside of work, she appeared in a number of pornographic films and apparently also advertised what are referred to variously as “kinky adult services”.

No-one in the Trust was apparently aware of this until it was brought to their attention by another employee (whom a number of press reports refer to as a “whistleblower” although it’s doubtful whether reporting on a colleague’s legal out of work activities would necessarily be covered by the whistleblowing protections).

Following this information, Ms Molloy was allegedly given a “resign or be dismissed” ultimatum.

So – were Ms Molloy’s activities outside work any business of her employer?

The Trust appears to have relied on two aspects – that she had breached their policy on second jobs, and that her behaviour had brought them into disrepute.  I wrote about how to deal with employees who have more than one job here, and it’s difficult to see how having a non-health service job in her own time would cause a problem (especially since in the NHS many senior professionals have second jobs) . At worst, it might be a warning for failing to notify them.

So did her behaviour bring the NHS into disrepute? She wasn’t patient facing, and it appears that her activities had been going on for some time without attracting any notice (which given that online porn is easily available is quite surprising).  Was the trust’s reputation damaged by being seen to employ her? Would the press have made anything more of the issue than they have done anyway, had they somehow got hold of the information sooner?  Or would public confidence be damaged? It’s interesting that in an admittedly unscientific newspaper poll, an overwhelming majority felt she should not have been dismissed (a suspiciously convenient 69%!)

Of course, many people find pornography distasteful, immoral or demeaning to women. But is a personal moral opinion grounds to sack someone doing something that isn’t illegal? In employment terms, you’d really need to show that continuing to employ the person was causing significant damage to your business to justify dismissal – was it within the range of reasonable responses to the issue? It might well be a case of “Some other substantial reason” if this were the case.

*Update Sept 2016 – Ms Molloy’s claim was successful, primarily on the grounds that the Trust had failed to follow any real procedure, although the judge felt that the disrepute issue would have potentially been a fair reason had they dealt with matters correctly.

When something unfair can be fair

Many small employers – and indeed employees – struggle with the concept of “fair dismissal”. In a way it’s not surprising, since fair in employment law terms means something different to fair in ordinary language. I’ve discussed before exactly what it means here and here, but when dismissal is combined with the strange legal term “some other substantial reason” it’s not surprising that people’s heads begin to spin.

Thankfully, we have a great example today of a real-life case where two of these legal situations apply – and it’s a situation I’ve encountered several times with clients and is always fraught with difficulty.

The company did sub-contracted work for a much bigger organisation. As part of one contract they had an onsite manager.  The client wasn’t happy with the performance of the contract and demanded that the company bring in a new manager. The company asked for time for the existing manager to try to improve things but the client was insistent.

The company then had a problem. They had an employee who had no job, and despite their efforts they did not have an alternative role for her that matched her skills and status. They did offer her a job on lower pay which she turned down. She wasn’t redundant however, as her job still existed, and because they had never discussed performance issues with her, the company had no grounds to dismiss her for this reason. Indeed, until the client raised it, they weren’t aware that there were problems with the contract.

They decided that they had no other option but to dismiss, using the “some other substantial reason” as their justification. The client did not want the employee on their premises and the company didn’t have another job for her. Quite understandably, the employee claimed unfair dismissal. She lost however because the tribunal ruled that the company had both a fair reason (she could not work on the contract she was employed on because the client didn’t want her) and they had followed a fair process (looking for alternative jobs). The tribunal did recognise that the situation was “unfair” to the employee in the normal sense of the word – and many would sympathise with her position –  but her employer had behaved fairly and legally.

It’s worth remembering that such cases are often good and easy to understand examples for small employers – and they also help to banish the myth that “tribunals are biased in favour of employees”.

Let’s Settle This (Part 2)

In my last post, I looked at when a small business might want to consider a Settlement Agreement. This follow up post looks at some of the practical issues when discussing an agreement.

The first thing is making the initial approach to the employee. Some people find this quite difficult to do but often – especially where there is a clear dispute – the employee may well be expecting you to say something. It’s important that at this early stage you simply talk about the principle of coming to an agreement, rather than jumping in with an immediate offer.

Follow this up in writing – confirming that you consider your discussion a protected conversation under the Employment Rights Act. This means that any discussions will not be admissible* if things break down and you do end up with a Tribunal Claim. (*Unless in the course of the discussions you say something as stupid as “I’m only getting rid of you because you’re pregnant/gay/Muslim” etc, or try to bully or harass the individual, in which case they can be used in support of a claim). You may also want to add the words “Without Prejudice” to any letter/email although strictly speaking these words only protect lawyers.

Think about the offer you are going to make. The individual is signing away legal rights so will expect something more than their basic contractual payments. Like any negotiation, consider your opening offer and what you are prepared to go up to. Remember also that negotiations break down it may be 6-8 weeks before you can justify dismissal so you’ll be paying the person for this long anyway – so an additional cash amount might be cost-neutral. You can also think about whether there are any non-financial benefits you can offer – a good reference for example. Try to avoid thinking in emotional terms “I don’t want to give this person £££” and look at it commercially

It’s also now “expected” – though you don’t legally have to do it – that the employer will make a contribution towards the employee’s legal fees. The amount is usually fixed, but in my experience will depend on the particular solicitor – one of the advantages of the north of England is that they are often cheaper!

Finally, remember that the agreement is voluntary – you or the employee can walk away at any point and if this happens then you continue as if the discussions had never taken place. This might mean restarting a performance or disciplinary process.

Let’s Settle This!

As with much of employment law, many of the small businesses I work with have heard of Settlement Agreements but aren’t quite sure exactly what they are. Recently I’ve had a couple of cases where clients have had concerns that discussing a settlement with an employee will be interpreted as a sign of “weakness”. This is the first part of a two part post (second part later this week), which looks at what they are and when and how they can be useful.

Firstly, you may be more familiar with their old name – Compromise Agreements – which was changed a couple of years ago as many people felt that “compromise” suggested that they had somehow “given in”. They are a legally binding agreement between an employer and an employee to end an employment contract, usually in a situation where there is some dispute between them.

The advantages for employers in this situation are:

  • No risk of a subsequent employment tribunal
  • Ends the relationship swiftly, allowing you to concentrate on running the business not dealing with an employee problem
  • Avoids any potential issues of bad publicity or reputation damage

There are disadvantages however

  • You may have to pay out more to the employee than you would contractually be obliged to
  • You may be expected to contribute to the employee’s legal fees
  • You may have to make certain commitments (e.g. provide a reference) that you might not otherwise want to
  • It is voluntary – you cannot force an employee to agree to one

To be legally binding, a Settlement Agreement must be in writing, contain certain clauses and most importantly the employee must have received independent advice from a qualified solicitor*, who must also countersign the agreement. Employers do not have to have employment law advice on the agreement (though many do) and there’s no requirement for their adviser to sign. A settlement agreement does not have to be a long winded legal document however – it’s perfectly possible to create a valid one on a side of A4.

But hang on, you may be thinking – “why don’t I just dismiss the individual? After all, didn’t you say in this post that it wasn’t as complicated and scary as many employers think?”

Clearly, you can just do this – but in many situations Settlement Agreements can be the better solution for both parties. And in part 2 of this blog post we’ll show you how to negotiate one.

*A qualified solicitor is one who has specific insurance which allows them to advise on employment matters. It is designed to protect the employee in the event of negligent legal advice. There are also certain others who are allowed to countersign settlement agreements such as CAB legal advisers, or some Trade Union officials

When Love Breaks Down

Listeners to radio soap The Archers (of which I am one) have been following for the last few weeks the ongoing affair between Elizabeth Pargetter, owner of Lower Loxley, a stately home now used as a Conference venue, and her general manager, Roy Tucker. In true soap opera fashion, Roy’s wife Hayley also works at Lower Loxley, as nanny/childminder to Elizabeth’s children. The affair ended with Elizabeth – much to Roy’s dismay – not only finishing their relationship but suggesting that Roy find another job.

Workplace relationships are an area that can be fraught for any employer, but particularly small ones where key staff can blur the boundaries between the professional and the personal. It’s not that they are uncommon either – it’s estimated that a significant proportion of personal relationships start in work (some even say a majority). Handling the breakdown of a relationship, especially between a “boss” and a “subordinate” can create many problems for a business.

Could Elizabeth sack Roy? Although she was very careful to say initially that she was not doing so, she might well have legitimate grounds for dismissal, under what is known as “some other substantial reason”. By giving Roy a period of paid leave of absence – often known as gardening leave – she’s making it clear that they can no longer work together. However, her subsequent actions of offering Roy’s job to his temporary replacement before finalising matters with him, and failing to follow any sort of process, have given him grounds for a claim of unfair dismissal (leaving aside the issue of whether he could afford to bring a claim). In practice, this is exactly the sort of situation that an employer and employee should try to resolve via a Settlement Agreement – a confidential and legally binding agreement to end an employment relationship – thus avoiding both embarrassing publicity for the business and personal information being made public.

But what about Hayley? Would Elizabeth and she be able to maintain a working relationship, especially as Hayley has now discovered the true reason for Roy’s late nights at the office? Again, Elizabeth might be able to use the “some other substantial reason” argument for dismissing her, but I suspect her case would be much weaker unless Hayley started behaving in an inappropriate manner. Hayley herself has quite understandably stated that she doesn’t really want to work with Elizabeth in the future. Here once again, a settlement agreement might be the logical way forward, unless Hayley resigns in a fit of pique.

Whatever happens – and at the time of writing it remains an unresolved issue – it will be an expensive fling for all concerned. And while The Archers is fiction, the consequences are likely to be the same if something like this happened in your business. It’s a worthwhile reminder of what the “Human” in Human Resources really means.