Wages claim exposes cheerleaders’ relations with players

Following on from Ellen Inglis’ piece on Kerry Miller, the Burton Albion Football Club administrator who sent ‘sexy selfies’ to players half her age, comes a tale from ‘football’ on the other side of the Atlantic, of players, cheerleaders, rules and mild condescension.

The Oakland Raiders, with their skull and crossbones logo and rabid fans, are a well-known brand in the US, even if their performances on the field in recent years have been more Pirates of Penzance than rampant invaders. The Oakland Raiderettes, the team’s cheerleaders, have nonetheless kept the flag flying, the dancing going, and the pom-poms doing whatever it is pom-poms do. According to a case recently filed for the Raiderettes, however, it now transpires that the team’s management has allegedly failed to pay them the minimum wage and/or made unlawful deductions from their wages.

The LA Times picked up the story, about which you can read more here. Raiderettes are apparently expected to attend at least 10 ‘home’ games as a cheerleader, together with 10 charity functions and one ‘ticket sales’ event, for the combined salary of $1,250 each for the year (although we should note that they also get two free tickets to each home game). That $1,250 also covers all meetings, practices, rehearsals, drills, workouts and photo sessions as required by the Raiders. It is alleged that, when all of these hours are added up, effective hourly remuneration drops well below $5 per hour – the current minimum wage in California is $8 per hour, rising to $9 in July. We shall see – it hardly seems worth the Raiders’ effort of arguing the point, but maybe there is some issue of principle at stake here.

The more interesting point, particularly given Ellen’s article, is the ‘Raiderette contract’ attached to the lawsuit filing, and the alleged ‘Raiderette Handbook’ sent to the LA Times, a copy of which was not disclosed with the lawsuit. Both of these documents contain a number of faintly surreal provisions in their fight to ensure that Raiderettes uphold the team’s standards of behaviour and appearance. For example, it is a condition of the contract that a Raiderette has not previously posed nude or semi-nude – given that the Raiderettes’ own website advertises the Raiderettes’ “spicy and steamy” swimsuit calendar front and centre, this seems slightly hypocritical, though as a means of ensuring a healthy press interest in your case, adding it to your court filings would seem to have few equals.

In addition, a charming section on the cheerleaders’ non-fraternisation with players explains in detail why “excessive and/ or improper fraternization with Club players or personnel will be grounds for dismissal“, namely:

“There have been a few relationships between the two groups that have resulted in a few happy marriages and lovely children. HOWEVER, we have also had more situations where, quite frankly, the Raider organization and the Raiderettes narrowly escaped ruined reputations“;
“one [prior] example concerns a player who gave Halloween parties every year and many of the Raiderettes attended. This same player …. was arrested for date rape. [Just] think how narrowly you missed having your photo in all the local papers and/ or being assaulted“;

and the not remotely demeaning:

“make a point to find out if a player is married…..in most cases, he won’t tell you! … there’s not a female alive … who doesn’t like attention. But you need to learn to deal with attention … without it getting out of hand or going to your head“.

We have to save the final word for the conclusion to the non-fraternisation section:

“Do not

become the topic of conversation in the locker room and/or by the staff. We eventually hear everything“.

As true in rainy Burton as in sunny California – if only Ms Miller had received the same warning.

What Every Woman Wants?

By Squire Patton Boggs on February 18, 2014 Posted in Discrimination

Last weekend, I watched what is tipped to be Leonardo Di Caprio’s Oscar–winning performance in Martin Scorsese’s “The Wolf of Wall Street”. For those of you who haven’t yet seen the film it provides a testosterone-filled snapshot of life in Wall Street in the ‘80s: high risk deals, with plenty of drug and alcohol-fuelled ‘high-jinks’, or, as we now know it, criminality. Poignantly, whilst the film does remind us all of the crimes against fashion that were a key feature of the ‘80s, the majority of the women seen in fictional brokerage Stratton Oakmont’s offices themselves were wearing very little at all, if you know what I mean. They were not there for their insights into the financial markets, if I may put it that way. Thank goodness then that gender equality in the financial services sector has come so far since those days….or has it?

I’m certainly not suggesting that Goldman Sachs has ever tolerated any of the behaviours common at the long-gone Stratton Oakmont, but it still managed to cause a bit of a stir this week with some potential female recruits. Goldmans was the biggest sponsor of a Harvard University event aimed at women interested in careers in computer science. Among the ‘freebies’ offered by Goldmans to attendees were cosmetics mirrors embossed with Goldmans’ logo, and nail files. One attendee was a bit put out by this, posting photographs of the offending objects on Instagram and commenting “not sure if this is #sexyfeminism or gender stereotyping”.

In a statement in response by a spokeswoman for Goldman Sachs, the bank commented that “We are strong supporters of efforts to recruit and retain women in technology. We apologise if the gifts gave anyone offence”.

So were the offending articles actually gender stereotyping or just an attempt to do something different for a gender-specific audience? I am personally encouraged that any Wall Street bank is actively targeting female recruits for any part of its business. Real equality, of course, will come when there is no longer any need to actively target any specific group. But was the offering at the Harvard recruitment event really reflective of gender stereotyping within such organisations? One might argue that the legacy of gender discrimination in financial services is that any gesture such as this is likely to be viewed negatively, however well-intended. You might also say that it shows greater consideration for your audience, let alone more “stickability” for your name, if your freebie is not instantly canned as tacky and irrelevant.

My own recollection of give-aways at student milk-round events is mountains of unmemorable tat – studiedly gender-neutral, age-neutral, race-neutral (and unusable) pens, mouse-mats and key-rings. If I had been presented with a choice between these and what Goldmans took along to the Harvard recruitment event? Mirror and nail file, please.

Supporting those affected by cancer to return to work

By Squire Patton Boggs on February 17, 2014 Posted in Health & Safety, Mental Health & Wellbeing

In the UK there are currently over 750,000 people of working age living with cancer. This represents over a third of the 2 million living with cancer, and with survival rates improving and people retiring later, that proportion is likely to increase.

More than 40% of people diagnosed with cancer make changes to their working lives, with almost half changing jobs or leaving work altogether. The total loss in productivity of cancer survivors unable to return to paid work in England was estimated in 2008 to be £5.3bn. So, what is happening here, and why? Every case is obviously different, every person unique, but there are nonetheless some common issues here for employers.

After the roller-coaster journey of receiving a cancer diagnosis and treatment, many cancer survivors and their employers believe initially that after a return-to-work plan has been agreed and a few reasonable adjustments made, life will be pretty much back to normal after a few weeks. Indeed, the latest research undertaken by Macmillan Cancer Support shows that 40% of cancer survivors, let alone their employers, are at first totally unaware of the long term side effects of cancer treatment. Yet these side effects can be both physical (pain, fatigue, loss of bladder control, impotence) and psychological (depression, lack of confidence), and they can begin long after the medical treatment has finished.

It is often the case that for those who have cancer, work offers an important lifeline back to normality and wellbeing. But recovery is a process, not an event. It takes place gradually, over time and often takes longer than everybody hoped or expected. Resilience and determination are required as well as patience and understanding.

The first few months after treatment can be a particularly difficult time for those recovering from cancer, often made worse by the feeling (rarely correct) that support is no longer available and that they are now “on their own” to deal with whatever happens next. Many of these difficulties are psychological in nature but are often not mentioned by those recovering from cancer for fear of making things even more difficult at work or of making themselves look weak or needy or over-dramatic.

Cancer treatment is not only profoundly physically traumatic but is also emotionally exhausting as individuals deal with the implications of the diagnosis, the uncertainty, the upheaval, the impact on their family and friends, and the loss of routine. The typical psychological issues that survivors face include feeling:

abandoned after treatment ends
afraid of a recurrence – every ache and pain causes anxiety
a sense of loss – of one’s past life and certainties
insecure and vulnerable, and not trusting one’s body
self-conscious about physical changes
frustrated, annoyed and depressed because of overwhelming fatigue (and fatigue and low mood amplify each other)
insecure at work because of changes in structure and staffing whilst they were absent on sick leave

Clinicians and employers tend to focus on physical recovery rather than these ‘softer’ issues, and they give very little advice or guidance about when is the right time to return to work, let alone about dealing with feelings or emotions.

So what’s the solution? Getting back to work is only the first step, though an important one, towards mitigating some of the anxieties cancer brings. It requires individuals to think about routine, day to day, external and objective issues – not their cancer. Once they are back at work, however, there are a number of other actions organisations can take to support them, in addition to the standard phased return-to-work plan:

Regular follow-up with the line manager and/or HR to check all is working well for up to 12 months. Clearly this depends on there being a good working relationship between the individual and his manager and/or HR.
Understanding within the organisation of the psychological impacts of cancer and how best to support affected employees. Organisations like Working With Cancer run short training events and webinars for line managers and HR professionals
Coaching/third party/EAP support. Giving individuals time to reflect with a knowledgeable but independent third party about their experience and to integrate it into their post-treatment life – both at work and outside work – often gives them a sense of control that they may have been (or felt) denied during treatment.
Buddying schemes: increasingly organisations are setting up buddying schemes for employees affected by cancer which enable them to provide mutual support and guidance
Clear employment policies on the support available to facilitate a return to work after cancer (and other forms of chronic ill health)
Website links/access to appropriate charities, counsellors and health providers.

None of these ideas is very costly to implement, although they may take a little time and effort to put in place. The saving to employers can’t be quantified exactly but if it saves the time and cost of a managed exit (and remember that the Equality Act protects cancer survivors as “disabled” from the point of diagnosis onwards) and of recruiting and training a new employee, and if it aids recovery as the evidence increasingly suggests, then surely it has to be worth the effort?

Barbara Wilson, Working with Cancer

#Neknominate- could it lead to being #sacked?

By Jon Chesman on February 17, 2014 Posted in Misconduct, Social Media

If you have a Facebook account, you will have come across #Neknominate, the drinking game that has gone viral in recent weeks. The game involves shunning the age-old tradition of moderate drinking with friends in the same room at the same time and instead consists of players recording themselves downing an alcoholic drink and then challenging others to do the same, all through the medium of Facebook.

In a worrying but inevitable display of one-upmanship, these videos have become more and more extreme. “Highlights” (using the word at its loosest) include someone entering a branch of Tesco on horseback before downing a Pepsi Max and a woman dressed in stockings and suspenders downing a can of Stella in the fruit and vegetable aisle of Asda.

So what (if anything) does this mean for employers? Harmless fun, yes? Not for friends and family of the four Britons believed to have died as a result, obviously, but does that risk give employers the right to intervene?

Firstly, it may mean that more employers start undertaking social media checks on potential employees- that star candidate may lose something of his sparkle when you’ve seen a video of him drinking his own urine (true story). Obviously fully aware of the perils of drinking on an empty stomach, reports do at least say that the man in question took the precaution of mixing it with cat food and, to settle his digestion, vodka. Is this the sort of person you want in your business? Even recognising that behaving idiotically in his private life does not necessarily mean that he will do so at work, why take the risk?

Employers should be aware that what employees choose to do in their spare time is essentially their own decision, up to a point at least. No matter how outrageous the video, or however many live goldfish are consumed (true story), unless the #Neknominate video somehow relates to the employment, employers will not be able to take disciplinary action. Any drinking in the workplace may be misconduct, and justify disciplinary action. The employee’s conduct could also warrant disciplinary action if it harms the employer’s reputation, for example by his wearing the work uniform in the video while doing something anti-social or just plain stupid. But mere disapproval of online drinking games will not constitute grounds for intervention.

So whether #Neknominate proves to be career suicide or just harmless fun will be vary from case to case. Employers should beware of knee-jerk reactions and try to apply common sense alongside their own internal policies. With a bit of luck #Neknominate will, like most viral sensations, disappear as quickly as it arrived, allowing the nation’s goldfish to breathe a watery sigh of relief and then forget the whole thing. What whole thing? Oh, look – a submerged castle.

Does the US Winter Weather Impact Employee Wages?

By Meghan Hill on February 14, 2014 Posted in Wage and Hour

With much of the United States covered in ice and snow, many employers are questioning when they need to pay employees who are affected by weather-related disruptions. All throughout the United States employees have been late to work because they were stuck in the snow or their kids’ school was yet again delayed and businesses have had to close completely. The Fair Labor Standards Act (FLSA), however, does not stop – even for a blizzard.

Traditional wage and hour principles continue to apply to weather-related absences. Treatment of non-exempt, hourly employees is very straightforward. Hourly workers need only be paid for the hours they actually work. Whether the employer closes the business or the employee is late due to snowy roads, hourly employees need only be paid for the time that they actually work, unless there is a collective bargaining agreement providing otherwise. However, employers should be aware that some states have laws that require workers to be paid a minimum number of hours in a day. For example, in the snow-packed Northeast, Massachusetts, New Hampshire, New Jersey, New York, and Rhode Island all have laws requiring a minimum amount of hours be paid to employees who show up for work.

For exempt employees, it matters whether the employer is closed for business or the employee is unable or unwilling to come in because of the weather. If the employer shuts down its operations because of the weather, then exempt employees must be paid their normal salary for the workweek, as long as they have worked one day during the week. On the other hand, if the employer is open for business but the employee elects not to come in because of the storm, then the FLSA permits the employer to treat that as personal time off and to dock a salaried employee’s pay or require that the employee use paid time off. Once again, state or local laws could require more of an employer than the federal statute does, so it is important that employers also pay attention to those requirements. Also, the FLSA does not permit employers to deduct partial days from exempt employees’ wages, so employees must be paid their normal amount even if they arrive late or leave early because of the weather.

With yet another week of treacherous road conditions, many employers are permitting employees to work from home. If non-exempt or exempt employees do compensable work from home, they must be compensated and non-exempt employees’ hours must be recorded in keeping with recordkeeping requirements.

Of course, the law only sets forth the minimum requirements for employers. Employers can always choose to pay employees above and beyond the minimum requirements of the law which can boost employee morale in this dreary winter.

30 years old and on the scrapheap; are professional football clubs defying the UK’s age discrimination laws?

By Squire Patton Boggs on February 14, 2014 Posted in Age Discrimination, Discrimination

So there I was, happily watching one of those television shows where journalists sit around a table and talk earnestly about football when suddenly off the conversational subs’ bench leaps a real employment law issue.

The reference was made by Henry Winter (Daily Telegraph Football Correspondent), who claimed that he receives emails on a regular basis from employment lawyers in the City telling him that Premier League clubs are flouting the law by discriminating against their older players. The debate relates to an apparently blanket rule at some of the top football clubs that once a player hits the magic age of 30 he will not be given anything more than 1- year-at-a-time extensions to his contract. One person on the show asked whether it would be acceptable in any other profession to have a policy whereby employees above a certain age are blatantly treated less favourably than their younger co-workers? The general consensus amongst the group was probably not, but “this is football” (i.e. not real life), and if the policy wasn’t committed to writing then the clubs would “no doubt get away with it”.

The Equality Act 2010 is pretty clear on this stuff. A ’30 and out’ policy is a clear example of direct discrimination; treating someone less favourably because of his age. However – maybe something the “employment lawyers in the City” neglected to point out to Mr Winter – direct age discrimination is unusual in that it can potentially be justified, and so lawful. The Act states that direct age discrimination can be justified if it is “a proportionate means of achieving a legitimate aim”. Whether an employer can meet the requirements for this ‘objective justification’ test generally depends on whether the policy can be considered to be appropriate and necessary, looking at the business needs.

Applying these tests, the offending clubs might fancy their chances of defending their approach. With the exception of Manchester United’s evergreen Ryan Giggs and Everton’s Sylvain Distin, it is the conventional wisdom that when a player reaches his thirties, he will not have the ‘legs’ to play as many games in a season and that he becomes more likely to pick up a career-threatening injury or at least to take longer to recover. Given vast player salaries (see Charlie Frost’s recent blog post), it is perhaps understandable that clubs are offering shorter contracts to players over a certain age, the legitimate aim being to mitigate their exposure should that player not make it through the season in one piece. What’s more, it is not a case of the clubs simply getting rid of players once they hit 30; instead there is a proportionate approach taken by treating each case on its merits. Put simply, if the player can demonstrate that he still have enough puff to play then he will be offered a new 1 year deal.

Compare this, however, with the supplying body for Premiership referees, Professional Game Match Officials Ltd. In 2010 the Sheffield Employment Tribunal ruled that PGMOL’s compulsory retirement from top-level matches at 48 was unlawful, as it could not justify that age either on medical/fitness grounds or by reference to common refereeing practice in other European countries. That was an absolute bar while the clubs merely impose a hurdle to be surmounted. Nonetheless, the fact remains that it is less favourable treatment and the likes of Giggs and Distin are the very reason why age-related assumptions and practices of this sort can never be said to be truly safe. Perhaps the reality (even in football) is that no terribly good reason is required not to renew a player contract at all and therefore that it would indeed take a brave player offered a 1-year deal to take legal action about not getting 3.

Is A Temporary Injury A Disability Under the Americans With Disabilities Act?

By Squire Patton Boggs on February 10, 2014 Posted in Discrimination

Although the ADA does not generally cover temporary impairments as disabilities under the law, the Fourth Circuit is the first Court of Appeals to declare that a temporary impairment can be severe enough to be a disability under the law.

In Summers v. Altarum Institute Corporation [pdf], the court of appeals reversed the trial court’s dismissal of the former employee’s disability and wrongful discharge claims. Mr. Summers was a senior analyst at Altarum Institute. During Mr. Summers’ employment, he fell and injured both of his legs while exiting a commuter train. After the accident, doctors prohibited Mr. Summers from putting weight on his leg for six weeks. Following those six weeks, doctors estimated that it would be a minimum of seven months before he would walk again. Less than two months after the injury, Altarum terminated Mr. Summers’ employment without engaging in any interactive process regarding possible reasonable accommodations.

As previously noted in this blog, the ADA was amended in 2008. In Summer, the Fourth Circuit noted that it was the first court to apply the definition of disability to include temporary impairments. The Court held that the “EEOC regulations . . .expressly provide that ‘effects of an impairment lasting or expected to last fewer than six months can be substantially limiting’ for purposes of proving an actual disability.” Here, the Court noted that Mr. Summers’ injuries squarely fell within the definition of a disability as it was alleged to be substantially limiting. The Court further noted that “prohibiting employers from discriminating against temporarily‑disabled employees will burden employers only as long as the disability endures. Temporary disabilities require only temporary accommodations.”

The Fourth Circuit’s decision continues to advance the expanding definition of individuals who are disabled under the law. Employers should proceed with caution before taking an adverse action (e.g., demotion or termination) against an employee due to the employee’s medical circumstances.

UK immigration minister resigns but has he broken the law?

By Annabel Mace on February 10, 2014 Posted in Business Immigration

Just when we were beginning to worry that a week had passed without a decent immigration story, our own Immigration Minister comes up trumps! Mark Harper MP has resigned from his Cabinet post because his (now former) cleaner, Ms Isabella Acevedo, does not have the right to work in the UK. Mr Harper has denied any illegality on his part but the press is full of reports that he could be fined between £5,000 and £10,000. Given his role in pushing through the Immigration Bill through Parliament, his resignation is understandable whatever the outcome but has he actually broken the law and, if so, what sanction could he face?

Well, we understand that Ms Acevedo began working for him April 2007. If that is correct, Mr Harper will not be subject to the current civil penalty regime where negligent employers can be fined up to £10,000 per illegal employee (due to rise to £20,000 from April this year). This system only applies where the employment in question began on or after 29 February 2008 (when the Immigration Asylum and Nationality Act 2006 came into force). Instead, section 8 of the Asylum and Immigration Act 1996 will apply. In summary, this provides that anyone who employs an employee without permission to work in the UK will be guilty of a criminal offence unless the employer can prove that, before the employment began, he had sight and took a copy of prescribed documentation confirming the employee’s right to work. However, the employer will not be able to rely on the ‘defence’ of having seen such documentation if he has knowingly allowed the employee to work illegally (this would apply, for example, where Mr Harper knew or should have known that documentation provided to him was forged or did not relate to Ms Acevedo or that her right to work had lapsed since first providing her documentation).

On the face of it, therefore, if Mr Harper cannot prove that he had sight of Ms Acevedo’s right to work documentation before she started working for him (and he is likely to struggle on this front given that he says in his resignation letter that he was unable to locate the copies taken by him), then he could be liable on summary conviction to a fine of up to £5,000.

However, it is important to note that both the current law preventing illegal working (and that which would apply in Mr Harper’s case) refers specifically to liability in the case of ’employment’ only. According to the legislation ’employment’ is deemed to exist where there is a ‘contract of service or apprenticeship’ in place (whether written or unwritten) – not particularly helpful for our purposes. Mr Harper says he took careful steps to ensure that Ms Acevedo would be considered ‘self-employed’ and he may have been correct in this analysis (although, if that was the case, we would question why he then went on to check her documentation).

Determining whether someone is employed or self-employed is far from straightforward and the relevant employment status ‘tests’ to be applied depend on the circumstances of each individual case (indeed, there is a vast body of case law on the subject). Relevant factors in this scenario might include whether or not there was ‘mutuality of obligations’ i.e. a clear commitment by Mr Harper to provide Ms Acevedo with regular work and for her to complete it, the extent to which Mr Harper controlled how and when the cleaning was done, as well as whether or not Ms Acevedo would still have been paid when not required to clean. We understand that Ms Acevedo only worked for Mr Harper for a few hours a week and that she worked for other inhabitants in the same block of flats. It’s possible therefore that there was a significant degree of flexibility over when and how she cleaned. It may also have been the case that if she did not clean Mr Harper’s flat in any given week or Mr Harper decided that her services were not required, neither party would have expected her to be paid.

In any event, even if Ms Acevedo is not considered to be genuinely self-employed, she could still fall into the category of ‘worker’ (a status between self-employment and employment where the individual is not afforded the same protection as an employee) without actually being considered an ’employee’. The Home Office may well try to argue and doubtless has in the past proceeded to issue civil penalties on the basis that the legislation is intended to cover workers as well as employees and that Mr Harper is therefore still liable. Indeed, the Home Office’s current policy guidance on the prevention of illegal working refers alternately to illegal ’employees’ and ‘workers’ (without actually explaining the distinction) perhaps in the hope that no one will notice this obvious loophole. All in all the position is far from clear and although Baroness Scotland of Asthal was fined £5,000 in 2009 in similar circumstances, Mr Harper may fare better, particularly given that he appears to have volunteered this information to the Home Office before being caught out.

In light of this, perhaps the focus of the Immigration Bill should be to clarify this area of the law before it starts imposing somewhat unrealistic obligations on landlords (but that’s a story for another day…).

Mental Health and UK Employment Law – Part 6

By Squire Patton Boggs on February 7, 2014 Posted in Health & Safety, Mental Health & Wellbeing

Yesterday was ‘Time to Talk’ day, a day about getting people to talk about mental health. Why does talking about mental health matter to business? It matters because mental health problems cost UK business over £26bn per year and such issues are now recognised as the number one reason for time off work.

However, absence is not the only issue – ‘presenteeism’ alone costs businesses over £15bn per year. What is ‘presenteeism’, you might well ask? It is the cost incurred to businesses by people who are in work but not performing properly due to their ill health. You may recognise presentees in your own office: their behaviour has changed, they contribute less in meetings, are working much longer or shorter hours than usual, they’re emailing at unusual time, have become isolated and generally are not performing well.

Because the person is still in work and more or less functioning, businesses do not usually take adaptive measures. Because of this, eventually presenteeism often turns into absence and the business costs escalate.

Much of the cost of presenteeism and absenteeism can be attributed to stigma around mental health. Stigma prevents employees from:

disclosing their issues to their line manager (whose time you are paying for);
using Occupational Health (which you are paying for);
using your employee assistance line (which you are paying for);
disclosing their issue to HR (which you are paying for);
from talking about their mental health and generally to anyone who might be in a position to do anything to help.

Not talking about mental health therefore means that employees are less likely to get support which means they are more likely to have worsening mental health, poorer performance and possible absenteeism – it’s a vicious circle.

So, it’s clear that not talking about mental health costs business money and it’s time to talk…how should you go about it?

Talking about mental health need not be an Oprah Winfrey-style confessional outpouring or a Regan and Carter style interrogation. In fact, we all talk about mental health every day; we do this without knowing it. Do you want to know what the revolutionary, clinically precise question we ask is?

“How are you?” Or “How are things?” or “How’s it going?” – you get the idea.

Yes, when you are asking someone how they are, you are enquiring – at least in part – after their mental health. Your mental health is your ability to process and experience your existence. 100% of people have mental health, and around 1 in 4 of us will experience a problem with it at some point in our lives. Your mental and physical health are inextricably linked, and combine to form a concept known as wellbeing. Like your physical health, your mental health fluctuates. It is inevitably affected by what happens at work and, in turn, affects how you perform at work and how much benefit employers get from your being there.

There are many different steps you can take to address mental health in the workplace but the first one is simple. We need to reclaim this simple question:

“How are you?”

You may not get immediately a full answer or indeed any answer at all, but if you keep asking, you are doing your best to open a door, to create an environment where one day your employee might feel empowered to say “Actually, not that great”. Then it’s time to talk.

Coming next – getting prepared for the answer.

Alex Tambourides – Chief Executive, Hammersmith and Fulham Mind

A UK tale of sexy selfies, steamy shower rooms and the WAG wannabe who would not take a hint

By Squire Patton Boggs on February 7, 2014 Posted in Discrimination, Misconduct, Termination

Workplace relationships, petites aventures and flirtation between employees are a headache that many employers have to suffer. The management of workplace romance has become increasingly difficult with staff working longer hours and social media often blurring the lines between the professional and personal lives of employees.

This issue was splashed across the press recently when League Two’s Burton Albion Football Club found itself at the heart of sex discrimination, constructive dismissal and harassment claims brought by former Administrator Kerry Miller. Ms Miller, 46, asserted that during her employment at the Pirelli Stadium she was warned to stay away from the footballers “without reason” and, when robustly reminded of this instruction by the Club Chairman, had been “forced” to leave her employment.

However, during the proceedings it emerged that she had in fact burst into the players’ dressing rooms on many occasions just when they happened to be getting changed, had sent topless photos of herself to a striker half her age and had engaged in a “casual” relationship with a defender.

The Leicester Employment Tribunal reasoned that Miller had been the author of her own misfortune. She had overreacted in walking out when reprimanded for her behaviour by the Chairman. After all, said the Tribunal in terms not quite veiled enough to be entirely courteous, she was “no shrinking violet” and had not really been intimidated by the Chairman’s anger that she would not do as she was told. In addition, soon after she left Ms Miller floated the idea of a return to work at the Club, a step almost invariably fatal to a claim that the employer is guilty of a serious breach of contract.

Her claims of sex discrimination and harassment were dismissed on the basis that a male employee would have been treated in the same manner had he persistently flouted orders in the same way. You could only imagine the response had one of the groundsmen continually wandered into the Ladies team’s quarters during the post-match showers! The fact remained that Ms Miller had entered the male changing rooms routinely without good reason, and had uploaded photos of herself with a player onto Facebook, thus catalysing personal rumours about them of a not wholly flattering nature. The Judge emphasised that the Club’s decision to discipline her was rooted in the fact that her continued attempts to fraternise with players was detrimental to its future and to team spirit, especially on the basis she was engaging in a relationship with one player and yet still seeking to maximise her exposure to the others.

This case highlights the difficult position facing employers when employees begin to engage in such activities during working hours. Although serial shower-room invasions aren’t a common problem, the fall-out of employees’ actual or attempted flings can be. There are steps employers can take to make to minimise employee heartache (actually no, not really) and company reputational damage further down the line. Employee handbooks should clearly state if there is a company stance on close personal relationships between employees and whether line managers should be notified of such associations.

Any policy or guidelines should detail how the company expects its employees to conduct themselves at work, and also be effectively communicated to staff. Burton Albion received in extra time a bit of a yellow card from the Judge on the grounds that Miller had not received written terms of employment. With respect, that seems a little offside as criticisms go, since the likelihood of their containing a clause relating to the ethics and possible disciplinary consequences of bursting repeatedly and unnecessarily into the gents’ dressing room after being told not to must surely be seen as pretty limited.