By Jemma Pugh, Solicitor, and Susan Evans, Partner, at Lester Aldridge LLP
You may have heard of the latest global internet dance sensation, the Harlem Shake. Perhaps you’ve even participated in one of these 30 second dance videos which are proving hugely popular on the social media site YouTube.
Presumably keen to be a part of this craze, students from Oxford University’s St Hilda’s College recently made their own ‘Harlem Shake’ video. At 11.30pm, a group of around 30 students went to the library to perform the stunt. The video, which apparently took just 7 minutes to make, has been viewed over 5,000 times since it was posted on YouTube. The students can be seen dancing on the library chairs and tables in fancy dress.
Was this all a bit of harmless fun? Well, not for Calypso Nash, a Classics graduate and the librarian on shift at the time. It has been widely reported that she has now been dismissed for not preventing the ‘Harlem Shake’ from taking place. The students have said that the librarian was not involved in organising the prank, nor did she take part. They say that Ms Nash could not have stopped it and have called for her to be reinstated.
The College has not released a statement nor made any comment on this dismissal as yet. Therefore, we are unaware of the full story at the moment. However, it is possible that the College considers that Ms Nash’s actions (or lack thereof) amounted to gross misconduct.
It’s probably worth reminding ourselves of the law on what is and isn’t a fair dismissal. Misconduct is, of course, one of the five potentially fair reasons for dismissal under s98 Employment Rights Act 1996. ‘Gross misconduct’ is misconduct which is so serious it justifies dismissal without notice and without a previous warning. Whether misconduct is ‘gross’ will most often be a question of fact and depend largely on the particular circumstances and the type of work being carried out. Examples of gross misconduct should be set out in an employer’s disciplinary policy and normally include theft, violence and serious negligence — the ‘Harlem Shake’ is not usually listed as a specific offence.
It’s possible that the College considers that Ms Nash has committed a serious breach of health and safety regulations by allowing the students to stand on the chairs and tables, or perhaps it assumed that she orchestrated the dance. Either way, for this dismissal to be fair, a reasonable investigation should have been carried out to ascertain the facts of the matter before acting.
An employer must ensure that they follow a fair procedure when dismissing an employee in order to protect themselves against claims of unfair dismissal. Generally, an employee is entitled to make a claim of unfair dismissal against their employer if they were employed for at least one year ending with the date of dismissal (this has been increased to two years for those whose employment commenced on or after 6 April 2012).
Assuming this was the librarian’s first offence, it is possible for an employer to dismiss fairly following one incident of gross misconduct but, once again, they should carry out a reasonable investigation of the issues first and ideally have a disciplinary hearing or meeting with the employee, in line with the ACAS code of practice. The employee should then be informed of the decision in writing, and given the right to appeal the decision.
Unless an employer is satisfied that the employee’s conduct amounts to gross misconduct, they should issue a series of warnings prior to dismissal. Perhaps most importantly, the decision to dismiss must fall within the band of reasonable responses available to a reasonable employer in those circumstances; if a claim is made by an employee, an Employment Tribunal will not substitute its own view of what the outcome should have been but will instead decide whether or not the employer acted reasonably.
In this case, assuming that a fair procedure had been followed, it all turns on whether the College’s decision to dismiss was within the “band of reasonable responses” open to an employer. What do you think? Was it reasonable to dismiss the librarian?
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