Some regard Jonathan Ross's three-month suspension from the BBC for his part in the now-infamous "Sachsgate" broadcast as little more than an extended Christmas holiday, rather than an appropriate sanction for gross misconduct. Few of us, however (perhaps only Mr Ross excepted), would be in a position to take a salary cut of what some reporters estimate to be £150,000, sanguinely.
During this season of festivities and high spirits many of us will be pushing thoughts of the possible consequences of our actions to the backs of our minds, as we let our hair down and lurk under the mistletoe. And for most of us the price we will pay will be nothing more than a hangover, and possibly a cringeworthy memory.
But what about those employees who go further, and are guilty of true lapses of judgment, at this time of year or any other? As well as leaving the nation debating what kind of sanction three months' suspension is, Sachsgate highlights the difficulties employers face in determining how to deal with employees whose misbehaviour results in consequences which escalate far beyond the damage caused by the original offence.
Suspension without pay
Suspension without pay is occasionally the sanction for an act of misconduct, where the contract or disciplinary procedure provides for it, but in the world of ordinary mortals suspension is more often encountered during the investigation stage of the disciplinary process. In this case it is supposed to be a "neutral act" and should not usually be seen as a sanction. Before suspending an employee the employer should consider whether it is necessary (is the allegation against the employee such that his/her presence in the workplace would interfere with the investigation or cause distress or danger to other employees?). Often an investigation can be carried out without suspending the employee and it can be stressful for the employee to be suspended before allegations are proven.
In these circumstances one would usually expect the suspension to be on pay rather than unpaid, and the investigation should be carried out as quickly as possible. The employee should be kept informed of the progress of the investigation and the evidence which is uncovered.
As a punishment for wrongdoing a period of suspension without pay could be viewed as draconian, entitling the employee to resign and claim constructive dismissal. If you are considering suspension without pay as a punishment check that your contract provides for it, and that it is consistent with your "custom and practice". You should probably also be considering dismissal or demotion, and will need to be able to explain why the sanction you have selected is the right one.
Where suspension without pay is appropriate is where the contract is for a fixed term, such as in the case of broadcasting celebrities and football players, and perhaps some other, lower profile, individuals. In these circumstances the employer could still be liable for the remuneration due under the contract, and so suspension without pay may be the only sanction with any "teeth". Mr Ross is unlikely to resign and bring a claim for constructive dismissal given that the most he could claim in the Employment Tribunal would be a piffling £63,000. However, if the BBC had terminated the allegedly lucrative contract he is engaged under then it is highly likely that he would have examined that contract very carefully for clauses permitting early termination. His lawyers may have argued that the BBC's decision to broadcast the offending material rendered any such clause void. In the circumstances a short sharp suspension has been the ideal solution for both parties.
Vicarious liability is the liability of one person for the acts or omissions of another.
The most frequent form of vicarious liability is that of an employer for the acts and omissions of an employee. The employer will be liable for acts and omissions of the employee during the "course of their employment". So if a van driver runs someone over whilst making deliveries for his employer the employer may be vicariously liable for the victim's injuries. If the van driver ran someone over at the weekend on his way to a football match the employer would not be liable.
In the instance of an employee making obscene telephone calls or committing an act of harassment, an employer could find itself vicariously liable for the actions of employees who act without its knowledge or permission, or for purposes which are not known or approved. This is more likely if they do so during working hours, or from an office telephone (or computer). For this reason it is essential to have a clear and effective conduct policy and to give employees guidance as to what behaviour the employer is not prepared to tolerate. The reasons behind this are twofold:
- To provide the employer with a defence to any claim of vicarious liability by making it clear that such actions can never be "in the course of employment"
- To provide a sanction against an employee who potentially exposes the employer to liability in this way, regardless of whether or not any liability is actually established or any damage is caused. It appears that in this case senior executives had approved the broadcast, and therefore it would have been likely that the BBC could not have escaped liability, should any further action have resulted.
Bringing the organisation into disrepute
Given that 30,000 people complained about the broadcast it does not seem far-fetched to argue that it brought the BBC into disrepute. One would expect that a fixed term contract would provide for termination in the event that one party brought the other into disrepute, but as above, since senior BBC were implicated in the broadcast it would be difficult to argue that Mr Ross was solely culpable for the damage to reputation suffered.
The leading case on this point is that of Liddiard v Post Office (2001). This case involved a Post Office employee pictured getting involved in an episode of football violence in France. The employee was subsequently named and his connection with the Post Office was revealed in the press – presumably a consequence he did not anticipate when participating in the fracas. The Post Office, however, felt that it was tarnished by the resulting media interest (and the, apparently inevitable, comment by the then Prime Minister condemning such behaviour). It decided that the employee should be held responsible for the consequences of his actions and dismissed him. The Tribunal and the EAT did not agree and felt that the actions of the press and the Prime Minister in making a public enemy of Mr Liddiard were unhelpful in the context of industrial relations. The Court of Appeal was more robust, however, finding that these events were also the consequences of Mr Liddiard's behaviour and that he was therefore responsible for them.
Case law would therefore appear to be on the side of the organisation which holds a miscreant employee responsible for all of the consequences of his/her actions. The problem the BBC had was that it had not taken the necessary steps to distance itself from the offence, and as such had effectively colluded in it.