UK: Conduct Unbecoming? Have We Got News For You!

Last Updated: 11 December 2002

The news of late has been full of salacious stories about the conduct of celebrities and eminent folk who have allegedly been guilty of conduct which brings their employer into disrepute. Just what is appropriate when an employee misbehaves?

John Leslie was dismissed from his position as presenter of Granada TV's "This Morning" programme, following allegations that he was at the centre of the furore surrounding the unnamed presenter who allegedly raped Ulrika Jonsson and, according to newspaper reports, assaulted more than 20 women and took cocaine. Granada Television sent him a letter asking him to respond to the series of claims. When he did not respond, Granada commented:-

"…we have asked him what he intends doing to challenge them, and as yet we've had no response. As a result it is no longer possible for him to present 'This Morning'. We have therefore formally terminated Granada's contract with him …".

It is understood that Granada relied on a clause in the contract forbidding him from bringing the television company into disrepute. In a normal employment situation, it is likely that such a response would have provoked a claim to the Employment Tribunal. The alleged victim refused to name her attacker, and the other alleged victims chose to instruct public relations experts rather than report the alleged incidents to the police, leaving the television company with apparently very little evidence of improper conduct other than that whipped up by the media trial. However, in this instance, given that the presenter refused to respond to Granada's letter and the ensuing media furore, the television company had little option but to invoke the provision in the contract. As such, it is likely that a Tribunal would have held that if the company had not addressed the situation by terminating his contract, its reputation and public image would have been compromised.

Similarly Angus Deayton was recently dismissed by the BBC as host of the popular satirical programme "Have I got news for you" over a second round of sex and drugs allegations. In the summer, Gurbux Singh resigned from his position as Chairman of the Commission for Racial Equality after admitting to public order offences arising from his being involved in a confrontation with police outside Lord's cricket ground in July. He was fined Ł500 by Magistrates and ordered to pay costs.

What can an employer do in respect of unsavory or criminal conduct by an employee which, on the face of it, appears unrelated to their duties? In general, misconduct is a potentially fair reason for dismissal, but an employer must act reasonably to avoid facing claims for unfair dismissal and discrimination. Regular readers will recall Jones Day's Christmas commentary "'Tis the season to be Jolly", which examined the principles in particular of what is reasonable, and what a Court would look at in terms of any subsequent claims, with particular reference to alcohol, sexual harassment, fighting and abusive language.

One of the leading cases on this issue related to the World Cup in France in 1998. Following ugly scenes in France involving British hooligans, the government called upon employers to take "strong action" against any employees involved in the riots; the government's stance was aided by some national newspapers conducting a name and shame campaign. The Mirror identified Mr. Liddiard as an individual involved in the clashes in France, citing his conviction of an armed attack on a police officer and his sentence of 40 days imprisonment; he was also identified as a postman. On his return to the UK, he was dismissed for bringing the Post Office into disrepute. The Tribunal held that the dismissal of Mr. Liddiard was unfair because, in their view, if the Government had not called for "strong action" causing the unprecedented press interest, the employer would not have dismissed Mr. Liddiard. On Appeal, the Court of Appeal thought that the behaviour of the hooligans caused the government statements and the press comment, and felt that the decision of the Tribunal at first instance could not stand. The case was remitted for rehearing.

This case demonstrates that an employee can be dismissed for a criminal conviction that is unrelated to his or her job if it brings the employer into disrepute. Obviously it is difficult to show that the conviction of an ordinary employee for a minor offence which attracts no press interest is likely to bring the employer into disrepute, and therefore any dismissal based on this reasoning may be unfair.

Many contracts contain a provision for dismissal in circumstances where the conduct of the employee brings the company into disrepute, but such a provision only gives protection from contractual claims. To secure protection from statutory unfair dismissal claims, the employer should always look at the circumstances of the incident, including:-

  • the type of criminal conviction and sentence
  • the seniority of the employee (which can have an impact on the employer's reasonable expectations)
  • the effect on the job (such as the loss of a driving licence when the post requires it)
  • the nature of the business (again about the management of reputation, as some businesses are more sensitive than others - e.g. those involving children).

In general the advice must be to act reasonably and follow the disciplinary procedure. Employers would do well to remember bad behaviour is not limited to employees. Recently the High Court, in a much-publicised case, held that the manner in which managers at City brokers Cantor Fitzgerald tried to introduce new financial terms for two of the brokers ultimately invalidated the restrictive covenants upon which Cantor Fitzgerald sought to rely. The third broker was handled in a more cordial and diplomatic fashion, and the Court held that he was in breach and not the employers. As a consequence, the covenant for that employee was upheld.

Stop Press

Following the Rutherford and Town Circle Limited -v- Secretary State for Trade and Industry(2) and Bentley -v- Secretary State for Trade and Industry, employers may now face unfair dismissal claims and claims for redundancy payments from employees dismissed upon reaching 65 or at a later age. The Tribunal based its decision on statistics relating to employees aged 65 to 74, the range within which the vast majority of retirement ages fall. The decision is also significant in the context of the government's consultation on implementing the age discrimination provisions contained in the European Employment Directive (2000/78) by 2006; see January 2001 Jones Day Commentaries "New Law for Old". The government has just announced it is appealing the Tribunal's decision, so watch this space!

Further Information

Jones Day Commentaries are a publication of Jones, Day, Reavis & Pogue and should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general informational purposes only and may not be quoted or referred to in any other publication or proceeding without the prior written consent of the Firm, to be given or withheld at its discretion. The mailing of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship.

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