Whilst revelations of the alleged scandalous behaviour at the News of the World are sure to rumble on for some time yet, the jilted journalists and other former employees of the newspaper will no doubt be keen to put the public relations disaster behind them and look to rebuild their careers.
However, the question for many of those individuals will be how they can recover from the reputational damage they might have suffered through their association with the disgraced tabloid icon. Staring down the barrel of a possible lengthy period of joblessness, what are the employment law ramifications that they should bear in mind?
Damages for stigmatisation
In the case of Malik v BCCI (1997), the House of Lords set an important precedent which allows employees to claim so-called “stigma” damages from their former employers where in that case the dishonest and corrupt conduct of the employer’s business adversely affects that employee’s future employment prospects. Such a claim may be justified on the basis that the damage has been caused by a breach of the implied term of mutual trust and confidence in the employment contract.
Should the allegations of wrongdoing at the News of the World be substantiated in the forthcoming police investigation and any subsequent public inquiry, the newspaper’s former employees may see this as a clear indication that the News of the World had acted in a manner which is in breach of the implied term of mutual trust and confidence and that has caused them a serious detriment in their efforts to secure new employment.
The sudden cessation of business at the News of the World has meant the 200 or so former staff are now free to tend their gardens whilst being taken through the redundancy consultation process; the law states that where an employer proposes 100 or more redundancies at one establishment within a period of 90 days, it must collectively consult about these with appropriate representatives of the affected employees.
It is a requirement that the consultation must start “in good time” (i.e. before any proposals for dismissal have been finalised and allowing representatives to have a real opportunity to affect the decision). Furthermore, consultation must be undertaken with a view to avoiding or reducing the number of dismissals and mitigating their consequences.
It is difficult to see how these obligations can be met by the newspaper’s owners with an open mind now that publication has ceased for good. This being the case, the employees may argue that the consultation process being followed is merely a sham and request that their representatives make a claim for a protective award of up to 90 days pay for all affected employees.
The Sun on Sunday – Does TUPE apply?
In the immediate aftermath of the News of the World closure, rumours abound that, like a phoenix from the flames, a “new” entity, the Sun on Sunday would step into the void. Indeed, it has been widely reported that the internet domain names thesunonsunday.co.uk and sunonsunday.co.uk were registered on 5 July 2011, just two days before the closure announcement.
Some commentators have suggested that such circumstances could lead to the former News of the World staff TUPE’ing across to the new publication. However, we understand that News Group Newspapers Limited employs the Sun and the News of the World staff. If News Group Newspapers Limited employed The Sun on Sunday staff then TUPE is irrelevant. If the employer of the News of the World staff was different to the employer of the new Sun on Sunday newspaper and key elements of the economic entity of the News of the World transfer then TUPE is a possibility.
If News Group Newspapers Limited employ The Sun and the News of the World staff, that is relevant to the question of whether the News of the World’s employees are, in the legal sense, redundant. This is because, if, at the time the News of the World was shut down, it was already known by News Group Newspapers Limited that it would shortly commence publication of the Sun on Sunday it would be difficult for the company to argue that there had been a decrease in the need of it for employees. Such circumstances could give rise to claims that the potentially fair reason for dismissal of redundancy does not apply and the News of the World staff were therefore unfairly dismissed.
Whether or not the News of the World staff are technically redundant will be an interesting talking point for employment lawyers, but the eventual answer is unlikely to provide the affected individuals with much comfort. Over the next few weeks and months the parliamentary select committee, public inquiry and criminal investigations are likely to take centre stage in the media but we will continue to keep a focussed eye on the employment tribunal to see how these issues are resolved.