An employee of Twitter committed an act on his last day which has seen him gain acknowledgement as a world-class prankster: he deactivated US president Donald Trump’s Twitter account for 11 minutes (before it was hastily restored by the company).
This breached the US Computer Fraud and Abuse Act by carrying out unauthorised use of a “protected” computer system, and the employee is now exposed to potential legal action. However, these situations can be a minefield where there is little or no legal recourse.
So here are some practical suggestions for managing such an eventuality, while staying on the right side of the law.
It is important to remember that every contract of employment contains an implied term that the employee will serve their employer with good faith and fidelity. Within the duty of fidelity is an obligation on employees not to disrupt their employer’s business. Even where an employee is leaving the business, they remain bound by this until the very end of their last day at work.
If an employer suspects an employee might be disruptive during their notice period, it may be advisable to place them on garden leave, thus putting them as far as possible from the business.
However, an employer can usually only do so under an express right in the employee’s contract and, even where this is the case, the employee should be informed that their duty of fidelity will continue throughout any garden leave period.
Dismissing a prankster
Where the behaviour amounts to a fundamental breach of contract, for example whereby a prankster commits an act which amounts to a serious breach of health and safety regulations, the employer may be entitled to dismiss without notice or payment in lieu of notice.
This may therefore preclude the need for previous warnings, although a disciplinary process should still be followed prior to termination. This principle still applies during the employee’s notice period.
It is also important to bear in mind that an employer may be liable for certain actions of an employee.
For example, if a prank is targeted at another employee because of a characteristic protected under the Equality Act 2010 (including sex, race, disability and sexual orientation), this may amount to harassment or discrimination for which the employer may be liable. It should therefore be investigated and the targeted employee given appropriate support.
Although there is no legal obligation on an employer to provide references, they can be a useful tool to encourage continued good behaviour. Employers should however ensure that their policies on provision of references are consistent to avoid any allegations of discrimination or breach of the implied term of trust and confidence.
Employers are under a duty to provide a reference which is not unfair or misleading. It is therefore advisable to provide references that are purely factual, i.e. merely stating the dates between which the employee was employed and their role.
Where an employee’s behaviour warrants disciplinary investigation, the employer may wish to include details of any pending disciplinary proceedings, provided the grounds are legitimate and justifiable.
Employers should ensure their employees are aware that a continuing standard of good behaviour and responsibility is required right up until they have left the employer’s premises on their last day. Serious pranks should be investigated and any concerns raised by other employees should be addressed.
However, it is important to consider the employee’s behaviour on a case by case basis before reacting. Where the behaviour has not caused significant harm to the business, its clients or other employees and the offending employee is leaving anyway, the best option may be not to act at all.
Katherine Newman is associate and Christina Mouktari is trainee solicitor at Faegre Baker Daniels
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