Two mugs given as a Secret Santa gift by Whitby lifeboat crew members have resulted in two crewmen being sacked and four others resigning in protest. Newspaper reports say that Ben Laws, who had volunteered for the RNLI for 15 years, and trainee Joe Winspear were fired due to safeguarding concerns after a complaint was made about mugs featuring naked women, one of which had a crewman’s head superimposed on the body. A spokesman for the RNLI said “We are aware of speculation about the issue on social media but we want to stress that this is not a trivial matter.”
ELAS employment law consultant David Southall takes a deeper look at the case:
“This is obviously a hot button topic as it features issues that ignite strong views across the social and political spectrum. However, from an HR / employment perspective, it is between the lines of the report that we can find a useful reminder of the importance of having proper procedures in place. Although the precise employment status of the individuals is unclear, it Is fair to say that if what the report says is true about their sacking, then this would not be a recommended way of proceeding.
“Whatever one’s personal feelings about the precise nature of the misconduct, it appears that mugs belonging to the trainee and crewman were a concern to their employer. Due to the nature of the personal items, it is also suggested that overarching Safeguarding regulations might also have been breached. The RNLI is right to confirm that they “cannot allow bullying, harassment… in a safe inclusive environment”; the question is whether they went about addressing these concerns in a fair and reasonable manner.
“Working backwards for a change, according to the report both individuals were dismissed over the phone. This is an instant fail in the eyes of HR professionals. However, there is reference to a disciplinary hearing which seems to have included a consideration of private social media communications between the pair. To be generous, the reference to a “phone call dismissal” may just be the charity informing the two individuals of the outcome of the disciplinary process. The correct procedure would be to follow up the phone call with a letter confirming the decision and the reasons behind it and advising the recipient of their right to appeal. This step should always be taken whenever someone is dismissed.
“The mention of social media muddies the water in respect of the reasons for dismissal. Any invitation to a disciplinary hearing should state the alleged acts of misconduct, with enough clarity that the employee is able to answer questions about them. Ideally there should be copies of the information that the employer wishes to rely on, attached to the invitation. It is unfair to ambush an employee with previously undisclosed documentation and interpret their confusion as evidence of guilt. The link between the mugs and social media is not stated. If there has been a recent history of problematical behaviour, then these may be considered together at a disciplinary hearing. However, to invite an employee to a hearing about one act of alleged misconduct but talk about additional ones for the first time is not good practice if you wish to rely on them for a dismissal. It is also risky, if the report is to be believed, for the employer to look at the private, non-work related, communications between employees. Unless they received full consent from their staff to access private emails then this would not be recommended, especially with the GDPR regulations that take effect at the end of May.
“Going right back to the beginning, whenever problematical conduct of staff is brought to their attention, the employer should firstly invite the individuals involved to an investigative meeting. This is purely a fact-finding exercise to put the situation to the employees and obtain their initial explanation. Although an incident may initially be of concern it could be that the person had approval for their actions from their own manager/supervisor. This avenue of exploration should always be undertaken before embarking on a full disciplinary process. It may bring up an innocuous explanation which can be a reminder to review your internal procedures. However, if there is a breach of your disciplinary procedures then you will be starting them on firm grounds.
“If any lesson can be drawn from the reporting of the ‘Whitby Mug Two’ it is IDO – Investigate, hold a Disciplinary and provide a written Outcome. Following these steps, and taking legal guidance, will hopefully reduce the chances of your dismissals being reported in a hysterical click-bait manner.”