What should an employer do if a story relating to one of its employees is made public through the press? 

An article in the London Evening Standard recently exposed a Transport for London worker who had made racist and anti-Muslim comments on his Facebook page.

The story, investigated by the Standard following a tip-off, details a number of hateful statements and offensive ‘jokes’ made by Train Engineer, Martin Aitken. His Facebook page has since been shut down by Aitken who told the newspaper that he “did not see the offence it could have caused”.

If an employer is made aware of misconduct relating to any of its employees, however this may come to light, it should undertake a thorough investigation into the facts.  There may also be reputational issues for the employer to consider, particularly if the business or the employee are in the public eye, where they might reasonably be expected to assume a greater level of responsibility.

Rather than being swayed by public opinion, media, anecdotal or hearsay evidence, it is essesntial that the employer undetakes its own investigation.  In limited circumstances and only where necessary to protect the business, the employee may be suspended pending the outcome of an investigation.  In most circumstances it will be inappropriate to summarily dismiss the employee without any investigation.

The usual disciplinary procedure should be followed and the employee should be given the opportunity to present their case in a disciplinary hearing.  The allegations should be clearly set out, together with any information the employer will rely on in making its decison.  The employee should be given reasonable time to prepare.  If a sanction is subsequently imposed, there must be a right of appeal.

There may also be other employees to consider.  If there is a suggestion of discrimination, as in the present case, employees may have grievances or even valid claims against the individual or the company.  Steps should be taken to address any other employees’ concerns, whilst maintaining the confidentiality of individual employees.

As with any employment case, if there is a clear and sensible policy in place which is well communicated to all employees, this is likely to assist an employer in making its case against an errant employee. 

It is also important to bear in mind the employee’s right to a private life.  Events which take place outside of the workplace and in an employee’s own time will not always affect the employment relationship.  However, where other employees are affected or raise a legitimate grievance, an employer will be compelled to investigate further.

Given the short period Aitken has been employed, if dismissed he will not have the 2-year period of service, required since April 2012, to bring a claim of unfair dismissal.  Any employee who does not meet their employer’s expectations in the first 2 years of employment is therefore susceptible to dismissal with limited opportunity for legal recourse.