Tuesday 26 September 2017

Comment: Did 'Sunday Times' breach columnist's employment rights?

Journalist and author Kevin Myers. Photo: Tony Gavin
Journalist and author Kevin Myers. Photo: Tony Gavin

Jason O'Sullivan

It’s been a turbulent week for journalist Kevin Myers and the Sunday Times newspapers in both Ireland the UK following Myers recent controversial column which caused deserved consternation among the Jewish community and general public alike as being anti-Semitic in nature.

Much debate has since ensued following its publication last weekend, as to whether or not it was discriminatory and racist in tone and how it was successfully published in the first instance having been received as so blatantly offensive.

It is reasonable to expect that both BBC presenters explicitly referenced in the column, namely Claudia Winkleman and Vanessa Feltz, will explore with their legal teams whether their reputation has been damaged as a result of the piece from a defamatory perspective. 

Another legal viewpoint which is not being debated on however, is whether Kevin Myers employment rights and entitlements to due process have been infringed by his expeditious termination with the Sunday Times. It is not known what type of employment agreement Myers had with the Sunday Times at the time of writing, if any at all, as he may be simply a freelance journalist.

However, from the rhetoric emanating from both Myers and the Sunday Times this week, it could be implied that an employer employee relationship exists between both parties. If such a relationship does exist, given Myers is based in Dublin under the Dublin branch of the newspapers means Myers contract operates within the Irish jurisdiction and under Irish employment legislation.

The relevant legislation for such matters in an Irish context is the Unfair Dismissal Acts, 1977–2015. Under this legislation, claims can be brought to the Workplace Relations Commission (the forum for such disputes) within 6 months following termination of one’s employment as long as that employee has 12 months continuous service with the employee subject to certain provisos and contractual terms in place.

In such circumstance whereby an employee claims they have been unfairly dismissed and with or without due notice, the burden is placed on the employer to show there were fair grounds to justify the dismissal.  Claimants in such cases if successful can seek re-instatement, re-engagement and/or compensation, the latter is capped at a maximum award of 2 years’ salary, which is seldom given in practice. There is also an obligation on the employee to mitigate against their financial losses following termination of their employment, meaning they must be actively looking for a new employment.

A prerequisite for employers in such claims, is the expectation that appropriate disciplinary procedures regarding employee misconduct are in place and are followed. The employer must adhere to these fair procedures and provide adequate warning when dismissal is being contemplated, meaning the employee is fully aware of the allegations against them and more importantly provided with an opportunity to respond to such allegations of misconduct.

There are however, instances when employee conduct is deemed so gravely serious by an employer, that the term gross misconduct arises whereby instant termination can occur without due notice or payment in lieu of such notice. Normally such terms would need to be stipulated expressly in one’s employment contract and have outlined what serious acts would constitute gross misconduct. An onus would still lay with the employer to justify such termination if a claim is brought by a disgruntled employee.

For speculative purposes, if we are to assume Kevin Myers has indeed a contract of employment with the Sunday Times, then most commentators could argue that Myers actions in themselves constituted gross misconduct and thereby deserved to be swiftly fired by head office.  A major weakness with such a position is that it appears at least five or six people located between Dublin and London would have viewed the column before sanctioning it for print, as affirmed by Myers in his RTE radio interview on Tuesday with Sean O’ Rourke.

This hints that more stringent due diligence should have been observed by his employer thus limiting Myers responsibility as an employee, to an extent at least.  Furthermore given Myers tendency for provocative and divisive pieces, one would have expected the need for an even higher standard of due diligence by either editorial team as to mitigate against such risk.

In that same interview however, Myers took full responsibility for the column and fell ceremoniously on his own sword so to speak. He too rightly apologised to those whom he offended and stated that he believed his journalist career was “in tatters” and that he “deserved to be sacked”.

It will remain to be seen what collateral damage these events will have for Myers’ future career and any subsequent damage to the Sunday Times from a branding perspective. It would also indicate that Myers is unlikely to legally challenge such a termination, although this stance may change in time on reflection as to whether or not he genuinely feels his employment rights were infringed.

Jason O'Sullivan is a solicitor and public affairs consultant at JOS Solicitors

Irish Independent

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