It was reported this month that the top boss of New York-based marketing company Mindshare was dismissed for conduct which was described by witnesses as “juvenile, idiotic, schoolboy and lavatorial”. It transpires that CEO Nick Emery nipped off to the toilet during an internal Zoom call and gave his colleagues more than they bargained for as he allegedly flashed his behind on the way out of the door. This was reported up the chain to the owner of the company and the decision was taken to dismiss Mr Emery for a “clear breach of the company’s code of conduct”.
Mr Emery’s interim replacement has since said that the company “believes everyone should experience an inclusive and respectful workplace culture” and that “Inappropriate and offensive behaviour is not tolerated in our company, and when we see any employee breach our code of conduct, we take swift action”.
Some of you might think that Mindshare’s reaction was over the top and potentially outwith the band of reasonable responses that would have been open to a UK employer in the circumstances. However, given Mr Emery’s seniority, he would have been expected to lead by example: a more junior employee may well have been treated more leniently for a first-time offence. Further, bear in mind that in UK discrimination legislation, it is the perception of the individual “victim” which is most relevant in deciding whether they have been subjected to harassment or not. A fellow video call attendee might reasonably have been so offended that they would have considered pursuing a claim against the company. Mindshare’s grave response could demonstrate that they do not condone such behaviour, albeit only the steps they took beforehand to prevent the offence from occurring might help them avoid vicarious liability for Mr Emery’s actions.
Employers are responsible for upholding appropriate standards of behaviour and dignity at work: in the present age where using video software for work is the new normal, employers would be wise to ensure that all employees are aware that internal policies and codes of conduct extend to home-working and the behaviour they demonstrate on-screen. Like Mr Emery, anyone in breach of these rules might find themselves the butt of the joke.