Prank Beheading video results in dismissal, but is it fair?

The news has recently broken that up to potentially six HSBC employees have been dismissed after they filmed themselves staging a mock terrorist style be-heading. It appears the group were on a work team building exercise in Birmingham at a karting centre. Dressed in black boiler suits and balaclavas, five individuals stood around a fifth dressed in an orange boiler suit and filmed themselves conducting a mock beheading on the man using a coat hanger. The scene has been compared to the murders of hostages by Isis, including British aid workers David Haines and Alan Henning. To complete what HSBC has denounced as an “abhorrent” video, it was then posted on Instagram before being removed shortly after.

HSBC has declined to confirm how many employees have been dismissed, but they have confirmed some have. Most people’s initial reaction to the above is disbelief and horror. Many will say it isn’t difficult to see why any of these individuals have been dismissed, however reading through the comments from members of the public on the online news stories, a varied picture emerges. There are a surprising number of comments from people suggesting that dismissing them goes too far, it was only a stunt and even some of the more cynical commentators suggesting that the race of the employees in question was a deciding factor.

If any of these individuals do have two or more years' service and decide to pursue an unfair dismissal claim, how will they fare? Of course we aren’t privy to all of the details, and the specific facts are very important. Assuming they were dismissed for gross misconduct, the starting point is whether HSBC acted reasonably in treating the act as a sufficient reason for dismissing the employee. With conduct cases it's necessary to show that the employer genuinely believed that the misconduct happened and based that belief on reasonable grounds, having carried out a fair investigation. Case law develops this test further and sets out that an Employment Tribunal must decide whether, in that particular case, it was “within the band of reasonable responses” for the employer to dismiss. In other words, would another reasonable employer, given the same set of circumstances, have made the same decision?

There’s video evidence so it isn’t hard to establish (assuming all employees are identifiable) that HSBC genuinely believed the misconduct occurred, and let's assume for arguments sake that they carried out a fair investigation. The interesting question here centres around whether it was reasonable to dismiss these employees for their stunt.

It would be surprising if potential reputational damage didn’t play an important factor here. The video was undoubtedly in poor taste at best, but had it not been circulated, much less published on social media for anyone to access, would these individuals have lost their jobs?

There is a steadily growing number of cases involving social media and we can draw on these findings to give us an indication of which side of the law the HSBC dismissals may fall on:

1. Employers must be careful not to take a disproportionate view of the damage or potential damage to their reputation misconduct which has come into the public arena causes;
2. If there’s no evidence that an act has or is likely to cause reputational damage, then dismissal could be unfair;
3. If employees have been given clear information about the corporate image and reputation, standards of behaviour and the use of social media then they can be held accountable for breaching these. Without clear guidance in place, it will be more difficult for an employer to dismiss in a case like this;
4. How public the nature of the forum where a video, photograph or comment has been posted is important; 
5. Dismissing managers need to consider whether there are other sanctions which fall short dismissal that might be reasonable;
6. Any mitigating factors of the employee in question need to be taken into account. For example, did they admit guilt? Were they apologetic and recognised the error of their ways? Did they have a previously unblemished record? All of these things answered in the affirmative will make dismissal less likely to be fair.

So, what does this mean for the HSBC dismissed employees? The video was published on a social media site, we’re not sure whether the particular user’s page was public or private, but HSBC became aware because The Sun newspaper got hold of the video. It’s unclear how the connection to HSBC was made although it was on a team building event, so presumably during work time. The Sun managed to get screenshots of the video before it was removed, and the story has been widely publicised, making front page news. With the bad press the banking industry is used to receiving this will be another blow to HSBC and undoubtedly they will have discussed with these employees the reputational damage their actions may have caused. The other facts of the matter are unknown to us, what length of service do these employees have? What is their employment record like? Did they show remorse and apologise? Does HSBC have policies in place setting clear expectations of their employees which covers actions like this video stunt?

We for one would be very interested to find out more if any of these individuals do decide to lodge an unfair dismissal claim. We’re watching this space…