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Employment Law Worldview

D.R. Horton – The Sequel: NLRB Finds Collective Action Waiver in Arbitration Agreement Unenforceable, Rejects Circuit Court Precedent on the Issue

Posted in NLRB

A three-member majority of the National Labor Relations Board on October 28 reaffirmed employees’ right to bring class and collective action claims [pdf].  In a case against Murphy Oil USA, the Board stood by its earlier decision in D.R. Horton, Inc. [pdf] in which it ruled that requiring employees to waive their right to bring class and collective action claims and instead bring only individual claims against their employer in arbitration violates employees’ right protected by the National Labor Relations Act to engage in protected concerted activity.  Over strenuous dissents of its two Republican members, the Board’s majority rejected the decision of the Fifth Circuit Court of Appeals, which denied enforcement of the Board’s decision in D.R. Horton, Inc., as well as decisions from the Second and Eighth Circuits, each of which disagreed with the Board’s interpretation of the Act and concluded that class and collective action waivers in arbitration agreements are enforceable under the Federal Arbitration Act and do not run afoul of the National Labor Relations Act.

As background, in 2012, the NLRB decided D. R. Horton, Inc., a case whose legacy we covered most recently in this blog in July. The NLRB concluded in D. R. Horton that an employer can’t force employees to pursue their claims individually. The Fifth Circuit disagreed, ruling in December 2013 it was lawful for an employer and an employee to enter into an agreement to arbitrate employment-related claims and to do so only on an individual basis, lawfully precluding class and collective actions brought on behalf of employees. The appellate court’s decision [pdf] held that the NLRA does not give employees a substantive right to pursue collective or class actions.

The NLRB majority’s decision this week in Murphy Oil indicates that the majority members considered the adverse judicial decisions that rejected their earlier decision in D.R. Horton, Inc., but concluded, “The core objective of the National Labor Relations Act is the protection of workers’ ability to act in concert, in support of one another.”  On this general proposition, the majority once again – and in the face of nearly unanimous judicial authority to the contrary – held that employers cannot lawfully agree with employees that employment claims have to be brought individually and not collectively or by way of a class action.

An appeal is a near certainty.  Thus, once again, a federal appeals court will take on the NLRB’s seemingly steadfast position.  Although a different outcome is possible, it seems likely that an appeals court will reject the Board’s position, setting up the potential for Supreme Court review.  The U.S. Supreme Court weighed in on a similar issue in June 2013, holding that agreements between companies and their customers or clients may contain class-action waiver clauses. That decision seemed to indicate the Court would uphold similar agreements between employers and individual employees, but yesterday’s NLRB decision specifically indicates that the Board sees no relevant Supreme Court precedent on the issue – drawing a distinction between commercial arbitration agreements and employment arbitration agreements.

Bottom line:  more to come.

Employer’s good intentions shrunk by Polish laundry worker

Posted in Misconduct

In a stylish hotel in the centre of Warsaw there is a laundry where, as usual for such places, linen and uniforms of the hotel’s staff are washed. High-quality industrial chemicals are used at the laundry which are not available in regular stores. One of the employees was very impressed with the efficacy of the chemicals used and decided to “borrow” some for her own use at home.

The manager of the hotel discovered the employee’s behaviour though normal monitoring of its laundry.  Employees are obliged to respect the interests of the work establishment and protect the employer’s property under Article 100 of the Polish Labour Code.  Even though this violation of that Article on the part of the employee would have justified terminating her employment contract without notice and with immediate effect, the manager decided to give her a chance to explain. After all, aside from this incident, she was a good employee – punctual, accurate and willing to work flexible hours. The employee was surprised to be accused of stealing and tried to play down the significance of the “small loans.” She asked, “What does my one load of laundry matter in comparison with the enormity of the hotel’s laundry?”, but nonetheless promised that it would not happen again.

And she meant it – the employee did not take any more chemicals from the hotel’s laundry. After a few months, however, the employee’s supervisor discovered that she was now bringing in her own private dirty linen to wash it at the hotel’s laundry instead. A clever move, perhaps, since it would surely be impossible for the hotel to show that it had lost out, or extra cost had been incurred, as a result of her actions.  In addition, she had honoured fully the promise made not to take the hotel’s stocks home with her.  Since the manager had chosen not to dismiss for the original theft, could he do so now?

Yes.  Polish labour law does not dictate the use of warnings pre-dismissal, especially where the conduct breached Article 100 so clearly.   It was his decision to allow the employee that second chance (though I imagine he now regrets it) and the law would not prevent the manager from returning to the original reason if that chance were abused.

As a second consideration, even though the employee’s use of the hotel’s laundry would have caused no identifiable loss or damage, it was still dishonest.   After all, if all the hotel staff used its facilities for their personal benefit in that way, there would have been a clear cost to it.  If it could not be allowed for everyone then it could not be allowed for anyone and the employee must have known that.

However, under Polish law, even if the misconduct after the second chance warning had not been so serious as to justify dismissal by itself, as here, the manager could still have used that lesser bad behaviour as a trigger to terminate the employment for the first offence.  Once Article 100 has been breached, the employer should not be deterred from allowing a second chance by the fear that the grounds to terminate the contract may thereby be lost.

Microsoft Error Message on equal pay

Posted in Discrimination, Equal Pay, Sex Discrimination

Thinking before you speak is generally accepted as best practice, particularly if you are speaking in front of a room full of members of the world’s media. Unfortunately Microsoft boss Satya Nadella recently failed to adopt this approach when addressing the question of what advice he would offer women who are not comfortable asking for pay increases. At a conference held to celebrate women in technology (no one can accuse him of not picking his moment), Nadella responded: “It’s not really about asking for the raise, but knowing and having faith that the system will actually give you the right raises as you go along”. I’m sure that Nadella couldn’t have been suggesting that the system in its current position is giving women ‘the right raises’ when some statistics show that women are still paid 35 per cent less than men on average and when it comes to management, 25 per cent less than male counterparts.   

Nadella went on to clarify his response by explaining that women should not ask for pay rises “because that’s good karma”. He dug a little further by stating that it would “come back because somebody’s going to know that’s the kind of person that I want to trust“. Is Nadella, boss of one of the most well-known companies worldwide, really indicating that asking for a pay rise that you potentially deserve would send the message to your superiors that you are less trustworthy than the woman who sits quietly and never asks for more than she is already gratefully receiving?   

Of course the interviewer at the event, Maria Klawe, a Microsoft director, instantly disagreed with these comments and Nadella later apologised for them via his twitter account claiming that he was ‘inarticulate’ in answering the question and that he would “wholeheartedly support programs at Microsoft and in the industry that bring more women into technology and close the pay gap”. At the risk of sounding like a game-show host, however, I am going to have to take your first answer, Mr Nadella. The original response to the question gives a frightening insight into his views on the equal pay subject and no doubt the views of other bosses, both male and female. I have no doubt that most bosses would rather their employees didn’t ask for raises.  However men are more likely to ask for that raise and by not encouraging (indeed, actively discouraging) women to do the same, the gap is unlikely ever to be closed.  [By the way, “inarticulacy” now ranks on a par with the terrific “mis-speaking” as the fashionable euphemism for having said something either mildly dishonest or incredibly foolish.  In neither case will an Employment Tribunal give it any material air-time as a defence.]  

The Equality Act 2010 allows employees to compare any terms in their contract of employment with the equivalent terms in a comparator’s contract, a comparator for these purposes being an employee of the opposite sex working for the same employer, doing like work of equal value.  The employer must then show the reason for the difference is due to a genuine factor and not based on the sex of the employee. Probably not so easy if you’ve just told women not to ask for pay rises at a conference specifically to celebrate their involvement in the industry. And if Microsoft were to lose an equal pay claim at Tribunal, things could get even more embarrassing as from 1st October 2014 employers who lose equal pay claims in the UK can be forced to conduct an equal pay audit and publish the results.

Does being told to “F*** off” by your boss constitute constructive dismissal?

Posted in Recent Cases, Termination

Yes, according to a recent decision in Australia’s Fair Work Commission concerning an employee who claimed that her resignation after an altercation with her boss was unfair constructive dismissal. The boss, Mr Gamble, contested this and claimed that Ms Reid resigned voluntarily after a heated exchange thus :

Ms Reid:          “I have six things to finish first! Which bloody one do you want me to do now? I have had enough of this s***!”

Mr Gamble:     “F*** off, Maryanne, you can’t keep speaking to me that way.”

Ms Reid:          “Right, you told me to f*** off. I have had enough of this s***, I’m leaving!”

Downton Abbey it was not.  There was no dispute that Mr Gamble told Ms Reid to f*** off, or (perhaps more tellingly) that he left her a voicemail message the following day when she didn’t attend the office asking her to “finalise things”.  The FWC held that “on any objective analysis, where an employer tells and employee to “f*** off”, and then does not take any action to explain or withdraw that expression it constitutes a direction to the employee to leave the workplace. As such, it constituted a constructive dismissal”.

As a small business employer (i.e. fewer than 15 employees), Ms Reid’s employer was also required to comply with the Small Business Fair Dismissal Code to prove procedural fairness which, it failed to do.  Consequently, the FWC found in Ms Reid’s favour.

Which begs the question of what the FWC had in mind by its reference to “explaining” the term.  Does that mean that there will be contexts in which it is acceptable (in the sense of lawful, rather than desirable) to tell one of your employees to take a hike in that way?  Without wishing to promote “f… off” as good management practice in any way, it would potentially be possible to pray in aid issues such as:

(i)         provocation – if the FWC had accepted that Ms Reid had sworn at her boss first, the impact of his language on her would have to be seen as diminished;

(ii)        stress – if it were apparent to the victim that the words had been said by a boss under great pressure and so perhaps did not represent his/her actual thinking, that would have to be relevant;

(iii)       working environment – bad language is more prevalent in some industrial environments to the point  where it is part of many daily exchanges and so is practically an endearment;

(iv)       context – no better example here than an old UK case, Futty –v- Brekkes Ltd in 1974.  Futty was a fish-filleter on Hull Docks (see “working environment” above), having a bad day and griping constantly to all who would listen.  Eventually his boss rounded on him and said (I take this direct from the Law Reports) “If you don’t like the job, f… off”.  Futty took this as his dismissal, and sued.  In what may have been the first ever judicial explanation of the precise meaning of “f… off” in the employment arena, the High Court disagreed.  The phrase was used here more as a “general exhortation”, it said, indeed practically as counselling.  It should have been heard by Futty not as his marching orders but instead as “If you are complaining about the fish you are working on or the quality of it or if you do not like what in fact you are doing then you can leave your work, clock off, and you will be paid up to the time when you do so.  Then you can come back when you are disposed to start work again”.

(v)        apology – but the best response of all to realising suddenly that you have just told an employee to f… off is to apologise, instantly and fulsomely.  None of the points above make it a good thing to say in the workplace, but the FWC is likely to recognise that these things happen and the mark of the employer and the salvaging of the situation will then lie in its handling of the aftermath.

Increased information obligations to employees in French company takeovers threaten transaction confidentiality

Posted in Employment Relations, Legislation, Union, Works Councils

France has recently introduced new rules obliging smaller companies to provide increased information to their employees regarding prospective takeovers and ownership changes and also regarding opportunities for the staff to make acquisition offers themselves. The laws are a part of the Lois sur l’économie sociale et solidaire,a scheme of reforms designed to strengthen economic social responsibility through increased employee share ownership.  

The new law forces companies to inform employees of proposed shareholder takeovers and changes in ownership at least two months in advance of the deal, so that they may have an opportunity to make their own offers. The rule applies to French companies with less than 250 employees (and meeting certain turnover / balance criteria) and applies to deals from 1 November 2014.  

The law applies when there is a sale of more than 50% of the shares of a limited liability company (SARL) or transfer of shares or securities in a stock company (société par actions) where the majority ownership would change.   

The current legislation already provides that in companies that have a Works Council (Comité d’entreprise), the Council must be informed and consulted on transactions. The mandatory time period for that process ranges between 1 to 4 months. The new law creates a further obligation for companies to inform their employees direct at the same time as they inform their Works Council or other employee representatives.   

A similar obligation is placed on companies with less than 50 employees or those with between 50 and 249 employees but without a Works Council or employee representatives. In such companies, the employees must be informed of the transaction but with a time limit of at least 2 months prior to the transaction. The transaction can happen before the expiration of the 2 months if each employee was correctly notified and each consequently decided not to make an offer. The result is a bizarre situation where small companies could have more onerous time obligations to inform employees of proposed changes in ownership than larger companies.  

The proposed transaction to the third party must take place within two years of the notification to the employees.  If it does not, a fresh round of information and consultation must take place.  

If the rule is not complied with the deal can be declared null and void in its entirety, so the adverse impact on both buyer and seller could be huge. It is not yet clear how tolerant the law will be of minor or inadvertent omissions in the information and consultation process, but one must hope for some flexibility given the draconian sanctions for failure.    

As a result of this new law, the confidentiality of proposed deals is also at stake. Though employees must keep the information confidential, there is no prescribed sanction for those who break the obligation, even if it were possible to identify them in the first place. An employee who leaks the information could still be sued for damages yet this is hardly ideal for either party. It seems unfair to burden all employees with highly confidential information (of no likely interest to them in the great majority of cases) and then sue them if they share it. It then puts the onus on companies to take legal action when most companies do not want to be seen to be the litigious ogre, especially when the financial compensation is impossible to quantify and in any case very unlikely to be large given that it is coming from an individual.   

The risks are worrying for companies and buyers in terms of repercussions in the market place, amongst other things. However well-intentioned, the provision of this information is also bound to create alarm amongst employees regarding job security.   

Though not as cumbersome but rather procedural and superfluous, the second prong of the new law forces companies with less than 250 employees to inform employees at least once every three years of the scope for takeovers by the workers themselves. This information, though also subject to confidentiality obligations, raises all the same concerns discussed above.   

The justification for these new obligations is that it will allow employees to make an offer to acquire the shares of the business themselves. This is hoped to reduce the number of potentially healthy businesses failing for want of robust buyers, and this problem will become more apparent with retiring company directors in the future. This may be so, but frankly, the obligations are ill-fitting and a very blunt tool to achieve that objective.   

The decrees to specify the precise terms and conditions of this new obligation have not been published yet.   

Law 2014-856 of 31 July 2014 – Lois sur l’économie sociale et solidaire

Attention California Employers! Required Training for Supervisors Must Now Include an “Abusive Conduct” Component

Posted in Employment Policies

California law currently requires that most employers provide sexual harassment prevention training to supervisory employees every two years.  In light of the attention being given to incidents of “workplace bullying,” California has now passed a law (AB 2053) amending Government Code section 12950.1 to require training on the prevention of “abusive conduct” as a component of the harassment prevention training presently required.   The new requirement will go into effect on January 1, 2015.

The new law defines “abusive conduct” as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.”  The law further specifies that abusive conduct may include “repeated infliction of verbal abuse, such as the use of derogatory remarks, insults and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.”  Although the law has mandated training targeted towards “abusive conduct” generally, California law has not been expanded (at least not yet) to create a cause of action for such conduct where it is not based on a protected characteristic (i.e., sex, race, etc.) and/or other legally prohibited discrimination or harassment.

“Abusive conduct” training is to be included within the already-mandated minimum two‑hour time frame, however, there is no specific time allotment.  As of yet, there is also no guidance on what information must or even should be included in the curriculum. As a practical matter, many California employers rely on third parties (such as HR training vendors or legal counsel) to conduct the required training.  For those employers, the new law may not require more effort than double-checking to make certain that its counsel or vendor is aware of this change and has adequately updated the training materials.  However, some employers utilize video or other internal training methods. In that case, it is critical that employers review their videos or other training materials and purchase updated or supplemental products that include “abusive conduct” materials.  Additionally, if any employers have scheduled training between now and the end of 2014, they may wish to consider immediately updating their training to avoid any issues.

Not unreasonable, not perfect – UK Court of Appeal guidance on disciplinary process

Posted in Employment Relations, Health & Wellbeing, Misconduct, Recent Cases

Some generally reassuring guidance for employers from the Court of Appeal this month concerning the level of certainty required to legitimise the starting of formal disciplinary proceedings.  

Dr Mian worked at Coventry University when accused of complicity in the provision of falsely favourable references for a former colleague.  A preliminary investigation was carried out by the University which unearthed among other things drafts of a number of other equally untrue references for the colleague on Dr Mian’s PC, a denial that she had sent the reference in question and an explanation for the seeming improbability of this which bordered at first sight on the fanciful.  Somewhat giving away the punchline, the Court of Appeal saw the recommendation that a serious disciplinary charge be brought as “entirely reasonable, indeed almost inevitable”.   

Dr Mian was told of the decision to start disciplinary proceedings on the 10th April and went off sick with stress and depression on 12th April.  The disciplinary meeting proceeded in her absence, it perhaps being a measure of the proceedings that her trade union representative’s best plea in her defence was that she had been “guilty of stupidity and naivety”.  Dr Mian was somewhat hesitantly acquitted of the complicity charge, but never returned to work at the University and later found employment elsewhere.    

She sued the University, claiming that it was in breach of trust and confidence and/or negligent in starting the disciplinary proceedings without undertaking the further enquiries which would have shown her to be innocent and so avoided the need for them in the first place.  Therefore it was liable, she said, for the psychiatric injury caused by the disciplinary threat.  This was particularly the case, according to Dr Mian, because the University knew from a dust-up the previous year between her and a former student that she was prone to take these things badly, indeed objectively unreasonably, and therefore that she was “vulnerable”.   

These are very bold assertions.  The first implies that you can never convene disciplinary proceedings safely unless the employee is then “convicted” because you would necessarily have to have investigated the thing to death before such proceedings were started.  That makes a mockery of the idea that the employer should go into disciplinary matters with an open mind, willing to be persuaded by new evidence or arguments that it is wrong.    

The second of Dr Mian’s contentions has some potential merit – of course your behaviour towards your employee must take into account known psychiatric vulnerabilities to some extent.  Relevant accommodations might include holding the disciplinary meeting offsite, allowing representation by someone else or the submission of written points instead of a physical attendance, granting some additional time for preparation in advance of the meeting, allowing breaks, etc.  However, the Court of Appeal made it clear that even if Dr Mian’s psychiatric vulnerability were clear, which was doubtful, this duty does not extend to not starting disciplinary proceedings where the available evidence otherwise justified it.    

It was essential not to blur the line between (a) whether Dr Mian was in fact guilty of the conduct alleged and (b) whether at the time of convening the disciplinary meeting the University had reasonably believed that she might be.  The Court of Appeal gave a clear and useful steer to employers contemplating disciplinary proceedings against an employee – they will not be acting unlawfully if their conduct in escalating a matter to formal disciplinary status falls within the familiar “range of reasonable responses” test, i.e. unless no reasonable employer would have started disciplinary proceedings in the circumstances as known to it at the time.    

Finally, (here is the most reassuring bit), “It is possible to be wrong (…both about the method by which the investigation should proceed and about …. culpability) without being negligent”.  If you can show that you had reasonable grounds to consider that a disciplinary process might be appropriate, and you can evidence those grounds, then you should have nothing to fear from starting it even if the employee is distressed or injured by your doing so.

Ebola outbreak in Spain – what should employers be doing?

Posted in Health & Safety

The sad news that a Spanish nurse has contracted the Ebola virus is shocking but perhaps not unexpected.  It was inevitably only a matter of time before the virus spread beyond West Africa.  With the World Health Organisation predicting further Ebola cases among medical staff in Europe and the US, what steps should be employers be taking to protect their staff and businesses?

It is not so long since employers in Spain (and around the world) faced the ‘swine flu’ and ‘bird flu’ pandemics.  At the time, we recommended that, at a very minimum, employers closely monitor sickness absence levels across the workforce so as to identify unusual or unseasonal trends.  It may also be difficult for employers to obtain information about potentially infected employees.  In Spain, for example, privacy rights and data protection restrictions do not generally allow doctors to disclose the reason for sickness absence.  Also, some Spanish hospitals are having to deal with employees refusing to attend work as they do not believe their health and safety can be guaranteed.  It can then be a difficult call for the employer concerned whether to take disciplinary action or consider hiring in temporary staff (assuming they could be found, which is not a given).

The debates about the source of the infection in Spain and whether the nurse and her colleagues were sufficiently protected will continue for some time, but there is – at least at this stage – no need for companies to implement disaster recovery programmes or indeed be concerned about their businesses being shut down as a precautionary measure.

There are, however, a number of practical steps that employers – both in and outside Spain – can take now so that they well-prepared in the event of further outbreaks of the virus nearer to home:

  • Have up-to-date information on the current position on the Ebola virus.  Government departments should be regularly updating their advice.  Plans may need to be modified if the virus spreads. Access to information will be essential as will communication of it to staff.
  • Keep employees updated on the latest position and what is being done to maintain the business and protect them to avoid unnecessary gossip, fear and disruption in the workplace – inform staff about known symptoms, what steps they can take to reduce the risk of infection, what the Government says on particular points, etc.  Use notice boards and intranet where possible.
  • Put in place contingency plans to deal with the implications of the Ebola virus – work out the real risks to the business in order to identify a response.  Consider possible absence levels and disruption to supply and distribution chains.  Should you stock-pile now, just in case?
  • Carry out a risk assessment to identify any possible measures for reducing the spread of the Ebola virus at work.  Put in place policies if necessary to reduce the risk of the virus spreading at work, for example immediate exclusion of employees with symptoms, delayed return of those who have travelled to or via virus hot-spots, increased cleaning of offices, etc.
  • Identify key roles and transferable skills – consider which staff could be retrained or relocated if necessary.
  • Consider modifying employment contracts to ensure that there is the necessary flexibility to continue to run your business in the event of high levels of staff absence.  For example, the power to require staff to work flexibly in other roles to ensure business continuity, to suspend or exclude staff if they are suspected of having the Ebola virus or to cancel holiday if there are staff shortages.
  • Review availability of alternative labour resources – high levels of staff absence may affect the ability to cope with workloads, so consider a draw-down arrangement with a relevant agency, on an exclusive basis if feasible.

There are of course ideals but since Ebola is lethal and terrifying in a way which swine flu and bird flu were not, they may not be feasible in every case.  Any such arrangements would be likely to break down in practice if there were a serious outbreak in or near your company, but there is still much to be said for being able to tell your staff that HR has the matter under consideration, if not control!

A blog of two halves – Rooney trips up in discrimination challenge

Posted in Race discrimination

In the first part of this piece I looked at the possible application of the US Rooney Rule (the compulsory interviewing of at least one ethnic minority candidate for any senior American Football coaching or management position) and concluded that such a requirement would be unlawful in the UK.  I also discounted to some extent the positive discrimination provisions of the Equality Act 2010 as a source of help, on the basis that the conditions for their application are strict and the penalties for getting them wrong are material.  So what is the answer?

It is a difficult problem to solve. There is a Catch-22 in that football clubs, and certainly the elite clubs, inevitably base their hiring policy on experience and a proven track record which are justified and legitimate recruitment criteria.  That in itself will disadvantage non-white candidates trying to break into management as they are less likely to have those attributes, given the exceptionally low number of minority managers currently plying their trade, scarcely 2% of the UK’s top 92 Clubs.  We are unlikely to get any help from the Employment Tribunals for two reasons – first, that Clubs will almost inevitably be found to have appointed on grounds of genuinely perceived merit rather than race, and second, that unless and until the ethnic minority candidates are at least “equally qualified” on the measures referred to in my earlier post, race claims will generally fail anyway.  So overall, the law would seem to offer little direct help in this matter.

The answer may lie in a deeper analysis of the point at which the minority candidates drop out of the running to be football managers. For example, are there proportionate numbers of non-white coaches earning their coaching licence/managing at grass roots level and, if not, why?  Does the problem lie at this early stage? If so, the Equality Act’s positive action provision allows for bodies to overcome a perceived disadvantage by encouraging such under-represented groups to undergo training courses and gain relevant qualifications.  A Club may, for example, choose to hold sessions for its ethnic minority playing or coaching staff to meet leading figures in coaching to discuss how to break into elite football management.   This is not giving minority candidates preference over better- qualified white candidates, but giving them a helping hand to become as (or better) qualified and so to compete on the proverbial level playing field for a managerial appointment on merit.

No one can magic up from thin air a cohort of ethnic minority candidates with equivalent experience and qualifications if they do not exist, but the game and its Clubs and governing bodies can certainly help ensure that there will be such candidates in the future.  In my view, the answer lies, as ever, in ensuring that minority candidates are given (and take) opportunities at gross-roots level.  This is of course not just a race issue – the same could equally be said of women seeking to enter football management.  When Karren Brady became a director of Birmingham City FC aged 23, it is reported that the Club Chairman told her that to succeed she would have to be twice as good as the men there.  “Luckily”, Brady is said to have replied, “that’s not difficult”.   Hopefully a solid pipeline of minority candidates will avoid the same pressure being placed upon them.

Lessons from the Ryder Cup: don’t blast the boss in front of a world-wide audience

Posted in Misconduct, Termination

I’ll preface this blog by saying that I don’t play golf, nor do I really watch golf on television. I am firmly in Mark Twain’s “good walk spoiled” school on this one. The recent Ryder Cup however, I could get on board with. Pantomime cheering and booing like a TV talent show, fierce one-on-one competition, and the added interest of US not being the favourites.

The tournament ended with a thumping European victory, but in fact the story that really caught my eye was the subsequent fall-out over the USA’s defeat. Forced to explain the result at the post-tournament press conference, US player Phil Mickelson implicitly criticised the tactics deployed by his captain Tom Watson, making no mention of him by name but saying that the team “had strayed from a winning formula” which had led the team to victory under former captain Paul Azinger in 2008. He confirmed (perhaps unnecessarily) that he had not been consulted in any decision-making and inferred that boss Watson needed to take a leaf out of Azinger’s book if the USA were going to get back on top in 2016.  Watson, sitting next to him, seethed silently but visibly.  It may be that the buck stops with him but that will not have lessened the irritation of hearing one of his colleagues say so.

Mickelson will no doubt get a wedgie in the bunkers, or whatever these golf types do to each other, and in due course may issue a press statement suggesting his comments were taken “out of context” or similar, but it got me thinking -a if this had been an employment situation, could he have been disciplined for openly criticising his boss at the press launch of a new product or of a set of financial results?

A one-off incident would have to constitute very serious misconduct to warrant summary dismissal on its own.  If Mickelson were an ordinary employee and his comments had been malicious or discriminatory, this could have warranted disciplinary action up to and including dismissal, particularly given the public nature of their airing. It is an interesting question, however, whether comments about your superiors which are clearly designed to cause disruption and insult on the one hand, and “constructive observations” about their strategy and the running of the team on the other, should be treated equally. The boss’s name may not be mentioned but his position is undermined and company reputation is potentially equally damaged regardless of the employee’s motive for making the comments – so should one be treated with more leniency?

Is disappointment at a poor performance a mitigating factor that an employer should consider?  Does it matter that Watson/the boss later expressly accepts that same responsibility which the employee laid publically at his door?   Or that he had the grace to dismiss the critical remarks, for Press purposes at least, as spoken in the heat of the moment?  That they then cleared the air through what was described as an “open and candid conversation, giving a better understanding of each other’s perspectives”, this appearing to be the standard sports euphemism these days for “tremendous shouting match”?

It must be relevant also that the performance which was the subject of Mickelson’s cutting remarks was both public and self-evidently poor – if the employee is saying something which is already obvious (here, that the US team had “strayed from a winning formula”), this must make it less serious.  As a decision to dismiss should be fair in all the circumstances, it would be remiss of an employer to ignore any such issues when considering the appropriate sanction.

If the statement falls short of gross misconduct, employers might instead (or also) seek to argue that the statements have caused an irretrievable breakdown of trust and confidence between the employer and the employee. This has been recognised as a legally fair reason for dismissal of an employee, as it potentially falls within the catch-all category of “some other substantial reason”. The UK Employment Appeal Tribunal has however warned against employers using this as a convenient excuse to ditch employees with whom they have fallen out. In Hutchinson v Calvert (2006), the EAT advised that the employer must show that it genuinely believed that trust and confidence had broken down and that the reason was not “whimsical or trivial”. I don’t think Tom Watson will feel much “whimsy” about USA’s defeat or Mickelson’s comments!  The Press reports that Watson later visited Mickelson in an endeavour “to bury the hatchet”, though it is not clear precisely where.

The lesson here has to be, if you must let off steam to or about your supervisor, do it in private, not in front of the world’s media.