Background
Catherine Sanderson is English and until recently worked for the Anglo-French accountancy firm Dixon Wilson in Paris.
Under her blogger name ‘La Petite Anglaise’, Sanderson kept an internet diary about her life as an ex-pat mother. However, it also contained commentary on her employer, though never naming who her employer was.
She had never informed her employer, work colleagues, or clients about her blog, but when Dixon Wilson found out about it, it informed Sanderson that she was going to be dismissed immediately. The reasons it gave for dismissal included Sanderson having brought its business into disrepute and (to a lesser extent) saying that she had used part of her working time to write her diary, leading to a breakdown in trust.
Decision
While Sanderson kept a public diary, she mainly conducted her writing outside of her working hours and so could not easily be connected with her employer’s business.
A hurried, apparent change in the disciplinary charge against Sanderson from gross misconduct to acting in breach of the implied duty of trust and confidence owed by Sanderson to Dixon Wilson meant that it should have acted with caution and considered disciplinary penalties before reverting immediately to dismissal.
Dixon Wilson’s argument that Sanderson’s diary had damaged its reputation was rejected by the French employment tribunal, which decided that the employer had acted “without real and serious cause” and therefore had unfairly dismissed Sanderson. It was ordered to pay costs together with compensation equal to a year’s salary (about £30,000) and bear the cost of Sanderson’s unemployment benefit.
Dixon Wilson has appealed against the decision and that appeal remains to be heard.
Key implications
Employers should re-check their employment documents:
- Do they make it clear that employees must devote all of their working time to their duties?
- Does the organisation have policies/rules in place for dealing with the use of the company’s e-mail and internet facilities by employees?
- Do those policies make it clear that non-permitted use may result in disciplinary action?
- Do the grounds on which an employee’s employment may immediately be terminated include bringing the employer or any of its customers or clients into disrepute?
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Employers should be wary of dismissing for first offences of misconduct that appear to have taken place outside the employer/employee relationship or appear to be unconnected with the employer’s business. At the very least, there needs to be clear, demonstrable evidence that the misconduct is having a real and significant negative effect on a significant number of the employee’s colleagues, or on how the employer is perceived by its customers or clients.
And last but not least, never underestimate the power of the media. Television, radio and press coverage of Sanderson’s case will have had a far greater negative impact on Dixon Wilson than anything that Sanderson may have written in her diary. The decision to appeal could prove to be misguided, since it will inevitably result in continued media exposure. Perhaps paying the compensation might have been cheaper.
