Read the CISI's verdict and readers' comments on the ethical dilemma that appears in the Q3 2017 edition of The Review
Read 'Grey matters ethical dilemma: Warn or weed out?' from the Q3 2017 print edition of The ReviewThis popular dilemma, originally published in the Q3 2017 print edition of The Review, raises points about an employer’s response to information obtained from social media, the monitoring of social media itself and enforcement of a firm’s terms of employment. There were many well-considered comments, for which we thank you. A selection of these are shown here, along with the results from the survey and the CISI verdict.
Options offered and results from survey
A. Although contrary to Brandon’s terms of employment, the ‘offence’ did not take place on company property and was not in itself illegal. It will not bring the firm into disrepute and a warning as to Brandon’s future behaviour is sufficient. (50 responses)
B. Since Brandon is in breach of his terms of employment, he must be subject to the firm’s formal disciplinary process. (40 responses)
C. Brandon was on holiday at the time and his firm should just ignore the social media posting. (16 responses)
D. The firm must ensure that whatever action is pursued must apply equally to both Brandon and Greg. (19 responses)
The CISI verdict
What is likely to be a key determinant by any employer in such a case is whether an employee’s actions are in breach of their terms of employment.
If not, on what basis can the firm respond? In this instance, a majority of respondents (90/125) said that action should be taken, from which a slight majority (50/125) said that as this is not a major offence, a warning would be sufficient. We believe that such an approach is the most appropriate.
A further 16 respondents said that as the potential offence took place while Brandon was on holiday, the whole matter should be ignored, and 19 respondents did not commit themselves to any specific action, beyond saying that Brandon and Greg should be treated equally.
Interestingly, no one suggested that Brandon’s wife Izzy, who is also an employee, might be dragged into this, as she was also present when the potential offence took place. Did she have a responsibility to try to prevent it?
It is something of a moot point as to whether Brandon’s actions might be deemed to breach Principle 8 of the CISI Code of Conduct.
NB: A recent (Sep 2017) ECHR ruling against firms ‘spying’ on employees’ messages might also be considered when deciding on an appropriate response.
Some reader comments
"The terms of employment should be updated to reflect relevant changes in legislation!"
"Formal disciplinary process must be followed during which extenuating circumstances and mitigating factors can be taken into account."
"Irrespective of where the incident occurred, B is the only fair answer because the breach is clearly stated in his contract of employment, and to ensure fairness, the formal disciplinary process should be followed. That way an audit trail is clearly visible should this behaviour escalate into something more concerning at a later date."
"We would not be having much of a discussion if a Saudi firm was firing a Saudi national photographed consuming wine while on holiday (we would indignantly be crying 'unfair'). The potential examples are endless. Why the double standards?"
"Since it is a matter of ethical disposition which has nothing to do with legality, Brandon is expected to act in good faith and keep to the terms of his contract by staying away from cannabis or any drugs whether in or out of office."
"Without knowing the limitations or extent of the clause that related to the non-consumption of illegal substances, it would be difficult to resolve on this information alone. This would be a legalistic interpretation and may relate to where the company is incorporated or headquartered, and therefore the absence of legal clarification as to which legal jurisdiction applies might be key here, ie, if the company is headquartered or incorporated in a state where such a drug is not illegal, and the relevant applicable law is not stipulated in the employee's contract, then a 'good' lawyer could have a field day in defending the 'guilty party'. It may be that whoever drafted the contractual terms of employment didn't even allow for this cross-jurisdictional anomaly. While the use of contentious or illegal substances may give cause for concern to many clients, particularly in an older generation, as there is no malice or premeditated intention involved, combined with the fact the guilty party is not actively promoting its consumption and is not actively publicising his enjoyment in the company's name or to clients thereof, his 'naivety' warrants a formal warning, at the very least, not least because of brand management and reputational issues – given that a cross jurisdiction anomaly may exist here. Regrettably, there is too much naivety by many about the dangers and limitations of social media and how it can unfavourably juxtapose one's own behavioural profile with the image/brand management aspirations of one's employer. That problem is not going to get any easier the more media savvy everyone becomes."
"The legality doesn't seem to be the problem at all here. If he has not broken the law of the land where he engaged in the activity, he has done nothing legally wrong. I'm not sure what the precise argument would be, but perhaps there's even a 'bullfighter defence' available. The main issue really does seem to be to do with the terms of employment. If there is a breach here then it must be dealt with according to company policy and procedures."
"This is a close dilemma in that the action did not take place on company property and was not in company time and within a closed environment. That being said, as he is representing a brand in and out of work it would be very understandable if the firm pursued formal proceedings as the images were exposed online and therefore brings the company's reputation into question. But I believe a formal warning would be sufficient. The process should also mirror that of the other employee in the US in order to keep things aligned."
"Consistency for enforcement of employment terms must be ensured, otherwise Brandon may have a claim for unfair dismissal should that be the outcome of any formal disciplinary procedure. The HR team must confirm with their counterparts in the other jurisdictions what their position is in relation and what their intended action following up with Greg will be before proceeding, as this may help inform their decision on how to address this."
"The firm should ensure that Brandon, and if possible Greg, attend some form of drug counselling, although the multinational issue might cause some difficulty in dealing with both employees equally."
"Most 'offences' of which an employee could conceivably be found 'guilty' would not happen on company property – this is a red herring. So is being on holiday, for the same reason. Information about employee behaviour could come from many sources – just because it's on social media doesn't mean it can just be ignored.
Who says this will not bring the firm into disrepute? How would clients know that this was a one-off (for Brandon) and not a regular occurrence (apparently more so for Greg)?
If the contract says the use of any drug is a breach, and assuming it is conceded that smoking cannabis did actually take place (ie, it's not just a stupid comment below a picture of regular smokers!) then pursue disciplinary actions for the breach – applying the rules equally to Brandon and Greg. Presumably, as this is a first 'offence', complying with a good conduct requirement will not prove onerous for Brandon – potentially more complex for Greg if he is a regular user."
"The firm does not know what 'this' actually is. The HR rep has reached a conclusion which it cannot prove – tricky position to be in if it takes any action.
"Do the UK terms of employment for Brandon have extraterritoriality? A clear extension into a differing geographical area noting that UK law and the employment terms take precedence and those activities which are legal locally are not considered legal for employment purposes?
"If silent then the guide is what will be the firm's position on Greg - equal treatment is paramount but there is a friction in the potential to dismiss one and not the other."
"A is a reasonable solution although Brandon should be left in no doubt about adherence to his terms of employment since there is a danger that use could continue in the UK."
"If this is in breach of both their contracts, then Brandon and Greg must be treated equally. While they haven't broken any laws, they've been naive in posting the photograph publicly – both should be asked to remove the photograph and to think more carefully in the future. I don't believe either should be subject to a formal disciplinary."
"Big Brother watching you is not a good way to motivate a workforce."
"This activity took place outside of work without any association to the company, as well as in a place that it is deemed legal to do so, and therefore shouldn't receive more than a verbal reprimand."
"Not enough detail is provided in the case study with regards to the company's policy on drugs. From the detail that is provided it suggests that the company doesn't allow for any illegal drug taking while being employed by the company, therefore I've selected B. However, most companies I've worked for usually stipulate that employees are not allowed to be under the influence of legal or illegal drugs or alcohol at work and during work hours. If the company's policy states that it is against illegal drug taking, then Brandon could have a case to say that the recreational drug use was fully legal, as at the time he was in a place where it was fully legal to do so I would err on the side of caution with regards to his disciplinary action."
"Purely in terms of employment and contractual law, there are grounds to drug test both employees and put them both through the formal disciplinary process or worse. It may be strongly noted to Greg that not only has he breached the recreational drug use term of his contract, he is also not welcome to publicly share and encourage such acts to other employees and/or more widely."
"The incident cannot be ignored so a formal process is required.
However, on the evidence available it is unclear that Brandon was aware that he was committing an offence or that he has done any harm. He should be made aware of his lapse and demonstrate contrition. Greg is more culpable as he appears to have enticed Brandon into a 'sting' and then boasted of it."
"It may appear a little harsh, but seeing as he has breached his terms of employment, the firm must follow through on formal disciplinary proceedings, which in any event may only lead to a verbal or written warning. The issue, however, should not simply be ignored as terms of employment work both ways, to protect the employer and employee, and should not be taken lightly."
"My answer assumes that there is an element of discretion in the formal disciplinary process that provides for sanctions that do not necessarily lead to dismissal."
"Prostitution and pornography is legal in some countries, but if either had pictures on social media with prostitutes or enjoying pornography I don't think many companies or customers would find this acceptable. This also applies to alcohol. Alcohol is legal in most countries, but if there were a picture of a staff member on social media absolutely hammered looking like a degenerate in his own home I'd be concerned. They should at least ensure their profiles aren't public. That should be a basic understanding working in finance."
"There may be a question of what is in the terms of employment. If it states the use of illegal drugs, then surely it doesn't apply in this case. Presumably it is highly unlikely that any contract would list which drugs are acceptable and which are not."