Hot on the heels of the hapless Shearman & Sterling trainee and his inappropriate emails (see post 20 February), transatlantic financial news site hereisthecitynews http://hereisthecity.com/ brings word of another promising candidate for the 2012 Employment Law Worldview Career Suicide Awards.
Imagine that you work for an international bank in one of the largest skyscrapers in New York City, a building so close to the site of the former World Trade Centre Towers that it was badly damaged by debris from their collapse. Imagine too, if you can, that you have an urgent need for a novelty hand grenade (I don’t know either, but bear with me here). Last, imagine that rather than have your new toy sent to your home – though that is obviously not without its issues either – you have it delivered to your New York City office. Here your package is routinely scanned by the Mail Room and forty-four floors of employees in dozens of different businesses are evacuated in consequence http://dealbook.nytimes.com/2012/04/12/building-in-world-financial-center-evacuated/.
So if he were your employee, what would you do? Should he be dismissed or merely given the most terrifying disciplinary rocket in Wall Street history? Or was the building management possibly over-reacting in ordering the evacuation of the whole Financial Center, on the basis that though it would have made a bit of a mess of the Mail Room, even a live grenade represented no threat to the integrity of the rest of the building? Is having the thing delivered to the office an act of simple lack of thought, its consequences horribly magnified by the 9/11 context? Or is it an example of such patent stupidity and obvious risk that even without malicious intention(which has not been suggested), dismissal would be justified?
English case law suggests that dismissal for a simple act of negligence or carelessness will generally be unfair unless the potential consequences are so hideous that the employer is justified in not being willing to allow even the slightest chance of its happening again. The usual example cited is the 1975 dismissal of a Capt. Taylor (a former colleague of mine met him once – charming chap, apparently) for accidentally but severely bouncing a passenger jet on landing. Rejecting his reliance on the old aviators’ maxim that a good landing is one you can walk away from, employer Alidair’s dismissal of him was upheld because the risk of disaster in the event of a recurrence was too great.
In the current case there was a much lesser risk of physical harm, but given the traumatic memories which must have been awakened in New York and the undoubted baying for his blood of all the other businesses in the Financial Center building, it is hard to see that our Awards contender will get much chance to make that argument. A quick poll in the office here suggests the disciplinary rocket as technically the appropriate way forward, but that is easy for us to say. Working next to a constant reminder of the harrowing vulnerability of your office to terrorist attack must give that debate a power and resonance in New York which could not be ignored in any proper assessment of the employer’s response.