The media has been flooded this week with the news of the England Manager’s dismissal after only one game. It appears that Mr Allardyce was recorded making comments to reporters from the Telegraph who were posing as businessmen. These comments ranged from derogatory remarks about former colleagues and Prince William to ways to circumvent FA rules. The FA, as a result, have “mutually agreed” to part company with Mr Allardyce. In their statement to the media, the FA said, “The FA’s priority is to protect the wider interests of the game and maintain the highest standards of conduct in football. The manager of the England men’s senior team is a position which must demonstrate strong leadership and show respect for the integrity of the game at all times.” In short, Mr Allardyce contract was ended due to the impact his comments had upon the game and the FA’s reputation.
Whether or not you agree with Mr Allardyce’s comments or his treatment by the FA it is easy to think that this set of circumstances is unique and does not translate into normal day to day working life. However, like the FA, all companies are entitled to protect their professional reputation, particularly from unguarded comments by employees.
All employees have an implied duty of “good faith” or “fidelity” towards their employers. They must act in their employer’s best interests at all times. If an employee behaves in a way which brings his employer into disrepute, even if that behaviour is outside working hours, it can be a legitimate reason for the employer to dismiss him.
With the widespread popularity of social media, many people use this as a forum to complain about their employers, colleagues or customers. In the case of Weeks v Everything Everywhere Ltd ET/2503016/2012, an employee was found to have been fairly dismissed after his employer discovered he had repeatedly referred to his workplace as “Dante’s Inferno” on Facebook. His employer asked him to stop and he responded, in a rather uncomplimentary manner, that no one could tell him what to do in his personal life. The tribunal found that the Facebook comments were likely to cause damage to the employer’s reputation. More importantly, the employer had taken steps to prevent repetition, while the employee’s response to this had been unreasonable.
The level of the employee’s privacy settings can be relevant and the extent to which comments can be seen by colleagues or the general public will be taken into account. It was suggested by the EAT in the case of Game Retail Ltd v Laws UKEAT/0188/14, that Twitter is more public than Facebook. In that case the EAT decided that a dismissal for offensive, non-work-related personal tweets was potentially fair. The employee was followed by 65 of his employer’s stores and had posted 28 offensive tweets on his personal Twitter account.
In another sports-related case of Mason v Huddersfield Giants Ltd  EWHC 2869 (QB) the High Court held that a rugby player was dismissed in breach of contract after someone else used his personal Twitter account to tweet an offensive tweet. The dismissal was stated to be because he had not deleted the tweet quickly enough. The court held that the delay did not amount to gross misconduct and it was not convinced that the tweet “could be seen as being inextricably linked to the club”.
Some cases involve actions rather than words and it has been held to be fair to dismiss employees accused of criminal conduct which is unrelated to their job if their behaviour could adversely affect their employer’s reputation.
The seniority of the employee will also be relevant. Managers can be reasonably expected to set a good example for their colleagues and statutory Directors have extended fiduciary duties not only to act in their employer’s best interests but also to report their own wrongdoing.
As with many employment-related issues, the key is in the employer’s communications with its employees. It may not be sufficient to presume employees automatically know what conduct is or is not acceptable. Examples of behaviour that will result in dismissal in the disciplinary procedure can be useful, as can a comprehensive social media policy.
Employees should remember that whilst not everyone to whom they speak will have hidden recording devices (as in the case of Mr Allardyce), walls do have ears and their employer only has to hold a reasonable belief that they did or said what has been alleged to justify a dismissal.
If you would like further information about the contents of this article, please contact Jayne Holliday at firstname.lastname@example.org