Posted: Wednesday, 12 October 2016 @ 09:29
The recent emerging video of Donald Trump making lewd comments about women may damage his chances of winning the US presidency but if he were employed by a company, would it be legally entitled to sack him?
To some extent it would boil down to how senior he is in the company employing him. Senior executives who work for companies are subject to higher legal scrutiny due to employment terms and conditions and often what regulators and shareholders expect from senior employees.
By way of example, in the United States, the largest bank in Ohio dismissed its top lawyer after she said she was in a romantic relationship with the chief executive of Fannie Mae, the government-backed mortgage company. The motive for the sacking was apparently influenced by the standards expected by the US banking regulators.
As you go to more junior employees, provided you have terms and conditions/procedures in place employees can still be legally sacked on the basis that someone has brought the company into disrepute. Therefore the employer should be in a relatively strong position to remove someone on the basis of a Donald Trump type video even though the comments are made outside the workplace.
In the case of Pay v United Kingdom, the European Court of Human Rights (ECHR) confirmed employers may legitimately have regard to aspects of an employee’s life away from the workplace, provided they are relevant to the employee’s role or injurious to the employer’s reputation. Pay was employed by the Lancashire Probation Service to deal with sex offenders. But it came to light that, outside work, he was engaged in bondage, domination and sadomasochistic performances. Pay was sacked, and ultimately took his case to the ECHR. Pay’s case was dismissed and the ECHR took into account the nature of his role; his relationship with the offenders with whom he worked; the need for public confidence to be maintained; and, most importantly, the potential damage to his employer’s reputation.
Given this, Donald Trump's chances of surviving a disciplinary action may seem weak. However a possible defence may emerge on the basis that the actual video is more than 10 years old and Mr Trump was apparently contrite. If his employer hashed up the investigations and was seen to pre-judge him, then you never know - he may able to mount a successful defence to a sacking. But I have to say, that looks like a long shot. That said, being sued by Donald Trump may involve more stress and hard work than the average employment law case so an employer may be inclined to come to the negotiation table quicker.