THIS month there have been two reported cases in which a senior member of staff had instructed a junior employee to lie. In one case a chief constable allegedly told a junior member of staff to lie about a recruitment matter.
The employee refused and, ultimately, Sean Price, Chief Constable of Cleveland, was dismissed for gross misconduct. Less than a week later, it was alleged that the manager of the Ramada Glasgow Airport Hotel told staff to make false comments on TripAdvisor to improve its ratings on the site. That instruction found its way to the press.
What should employees do in these circumstances? Lie, or stand their ground? Either option gives rise to practical concerns for staff. Could the boss discipline an employee for failure to comply with such a request? Employers need to consider some employment law issues in these cases.
In Scotland, certain terms are automatically implied in every contract of employment. One is a “duty of fidelity” whereby an employee should act in the best interests of the employer.
An employee should also comply with all lawful and reasonable instructions issued by the employer but is entitled to refuse to comply with an unlawful or unreasonable instruction. Deciding whether an instruction is “reasonable” is, of course, not always easy and much will depend upon the context of the employment relationship and the prevailing circumstances of the request.
Another implied term is that neither party should act, without just or proper cause, in a way that destroys or seriously damages the relationship of trust and confidence. This term is often relied upon by employees to support a claim for constructive unfair dismissal. Thus, a supermarket employee whose supervisor loudly shouted at her in front of customers and colleagues was entitled to resign and claim constructive unfair dismissal given the employer’s actions.
In such cases, questions arise as to whether the employer’s conduct did in fact destroy the required trust and confidence, or whether there was just and proper cause for so doing. These are questions of fact to be determined in each case.
Employers should ensure that there are in place systems and policies so that workers, including managers and senior staff, know how to act appropriately; what is expected of them; and the consequences of acting inappropriately.
The employee faced with an instruction to lie can therefore refuse to follow that instruction, and may well refer the matter to a more senior member of staff. The person who instructed the employee to lie could face disciplinary action.
An employer who wishes to discipline an employee for failing to follow such an order can only legitimately do so where the employee has in fact done something wrong. Failure to follow an unreasonable order is not a disciplinary matter.
It is also important to bear in mind that, in addition to legal costs and management time, there are significant reputational and other risks arising from the failure to deal properly with these matters. This underlines the need to ensure that there is a culture of openness and that staff at all levels know how to behave, and that disciplinary proceedings are reserved for genuine misconduct.
As in most areas of employment law, there are always risks but it is important for all organisations to ensure that these risks are properly managed and that an informed decision is taken. Telling lies in the workplace can give rise to many issues. Perhaps honesty is always the best policy.
• David Hoey is a partner and accredited specialist in employment law with bto