The 'Shape of You'... and your reputation

As the hit track ‘Shape of You’ is currently the most streamed song on Spotify, with over 3 billion streams worldwide, singer Ed Sheeran could have previously been forgiven for thinking that the catchy lyrics and hard-to-ignore beat would the most commonly associated thoughts with his work. However, in the recent high-profile copyright case, Sheeran and his co-writers were accused of copying the 2015 Sami Chokri song ‘Oh Why’ and passing off the work as their own. 

After a lengthy trial, Sheeran was ultimately successful and has criticised so-called ‘damaging’ claims such as this, and their impact on songwriters. Despite the ultimately favourable outcome for Ed, the initial damage to Sheeran’s reputation has inspired us to visit the topic of employee behaviour, when this can cause reputational damage to their employer. 

Can potential reputational damage lead to dismissal?

There are five reasons for which an employee could potentially be fairly dismissed, including misconduct and some other substantial reason (SOSR). In some cases, Employment Tribunals have found that where certain employee misbehaviour outside of work is associated with their employment, causing tangible damage to that company’s reputation, this could give grounds for a fair dismissal. Depending on the circumstances, this could be categorised as a misconduct or SOSR dismissal.

An example of a forum with an increased likelihood of reputational damage occurring is social media. It is estimated that there are over 50 million active social media users in the UK, therefore it is unsurprising to imagine that employees can sometimes post comments on their personal social media that may bring their employer into disrepute. Whilst it is outside of an employer’s reach to control what employees post on their personal social media, it may be possible to take action following any unacceptable posts. 

Should an incident take place for which the employer feels that action is needed, initial caution should be exercised. The employer must make it clear that a risk of genuine reputational damage is the reason that disciplinary action (perhaps even dismissal) is being considered. A fair process must be followed and the employee given the opportunity to have their say. Once a fair process has taken place, the employer must decide on the appropriate course of action. When it comes to dismissal, the employer must act reasonably in treating the conduct as sufficient reason for dismissal. 

It should be noted that reputational damage cases are rarely straightforward. By way of example, just because an employee has been charged with a criminal offence, that does not automatically permit an employer to dismiss themfairly. Should any resulting reputational damage be sufficient, the employer would need to show a legitimate connection between the alleged incident and the damage to reputation for the employer – this includes whether there is likely to be any negative press coverage. 

If an incident occurs leading the employer to be concerned about possible reputational damage, it is important that a proper process is followed.

Some top tips for employers when considering these matters include:

1. Having an up-to-date Code of Conduct and also considering implementing other policies such as a Social Media and Internet Policy.
2. Noting that each case is very fact-specific and avoiding taking disproportionate action based on assumptions about potential damage to their reputation. If in any doubt, it would be sensible to seek legal advice. 
3. Ensuring that a correct process is implemented should any action be taken regarding the matter. This includes, but is not limited to: 
   1. Establishing the facts of the case through a thorough investigation;
   2. Informing the employee in writing of the matter and inviting them to a disciplinary meeting;
   3. Allowing the employee to be accompanied to the meeting and ensuring that this is carried out by an independent individual not involved in the investigation stage;
   4. Deciding on the appropriate outcome and informing the employee in writing accordingly; and
   5. Providing the employee with the opportunity to appeal. 

Employees should be mindful of their behaviour outside of the workplace. Most people think they can post whatever they want on their social media, for example, but individuals should be sensible as, in worst case scenarios, theiremployer could dismiss them on the basis of the potential reputational damage. 

It seems that it truly is the Shape of Your company’s reputation that will be of most critical importance.