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.