While details are still emerging, yesterday it was announced that Christian Horner, principal of the Red Bull F1 team has been dismissed with immediate effect after 20 years.
Mr Horner faced allegations of sexual harassment and coercive and controlling behaviour 17 months ago by a female employee but was twice cleared following investigations by the team’s parent company, Red Bull GmBH.
It is not clear whether these allegations have had anything to do with Mr Horner’s dismissal, but it raises some important points in relation to Employment Law which employers should keep in mind when considering the dismissal of senior employees.
It is important to bear in mind that (as of October 2024) employers in England and Wales have been subject to a strengthened legal duty to take “reasonable steps” to prevent sexual harassment in the workplace (Worker Protection (Amendment of Equality Act 2010) Act 2023). It is not always clear what “reasonable steps” should be taken in respect of each particular case, but as a minimum, employers should implement appropriate training, properly investigate complaints, and take action where wrongdoing is identified.
Whatever the reason for the dismissal, employers will want to consider the following:
- If the employee has more than 2 years’ service (Mr Horner has more than 20 years’ service), dismissing them brings a risk of an unfair dismissal claim. Therefore, it is important to ensure that there is a “potentially” fair reason for the dismissal. Potentially fair reasons are: misconduct; capability; redundancy or Some Other Substantial Reason (e.g. a clash in personalities, or there being a public scandal or risk of reputational damage);
- Consideration should be given to the investigation process and how it can be dealt with sensitively and to avoid reputational damage being unnecessarily caused (both to the employee and to the employer);
- How quickly should the individual depart from the business? In some cases, the need to act quickly might cause some employers to cut corners in ways which would not happen for more junior members of staff. This increases the risk of a successful claim but, often, the risk of keeping the individual in the business during a protracted process outweighs the risk of a potential unfair dismissal claim. In this situation, any settlement offer made to a senior individual will likely reflect the potential costly claims which may arise as a result; and
- What disruption will be caused to the business by the employee’s departure, and what message should be communicated (both internally and externally, if appropriate) about the reason for their departure?
Change to the Employment Rights Bill
Dismissing a particularly high-profile individual raises additional and important points about confidentiality, Non-Disclosure Agreements (NDA’s) and the impact on the employee and the employer’s reputations.
It was announced earlier this week that the Employment Rights Bill has been amended to include a new clause (22A) which will render void any provision in a contract between an employee and an employer (including Settlement Agreements) where there is an attempt to prevent the employee from making allegations or disclosures about harassment or discrimination. This will represent a huge change in the way in which employment settlements are reached.
It has been hailed as a way to end systemic misuse of NDAs, but many commentators have concerns that without the ability to guarantee that employees will not go on to make public statements about their departures (where they relate to discriminatory matters and harassment), many employers will be less likely to be willing to settle such claims.
This could lead to even more cases entering an Employment Tribunal system which is already straining under the weight of its existing case load. We wait to see whether this change will cause a culture shift in workplaces or further delay the hearing of cases in the Tribunal system (or both!)
If you are having trouble with senior employees, or if you are a senior employee and need advice on the best way to proceed, contact our employment team today.