Risk Management and Disputes: Navigating the Naughty List and Managing Your Business Reputation This Festive Season.

Reputation is key for businesses and individuals. It is said that a reputation takes 20 years to build and 5 minutes to ruin. On a monthly basis there will be stories all over the news of businesses and individuals behaving in a way to damage their reputation, but during the Festive Season there is often an uptick in that news.

Every year there will be news of bad behaviour at work Christmas parties and drinks, with a knock-on effect for the business. That can either be through damage to the reputation of the business or individual, or through a claim or complaint arising from the bad behaviour.

With guidance and training you and your business can work to mitigate and minimise some of the risks.

‘Personal’ and ‘Professional’ lives

In days gone by, individuals were more likely to get away with "bad behaviour" in their personal life without jeopardising their professional reputations, however that has been changing for some time now. With the increasing availability of media, social media, and camera phones, the personal/professional life boundaries have become increasingly blurred.

Society is, rightly, more willing to ‘call out’ bad behaviour, but that is also combined with a growing complaints culture and more litigious society, which is increasing the risk for businesses of all sizes.

In the not too distant past, people expected to post on social media, without any effect on their work lives. As we know, that is no longer the case, as demonstrated by the following examples.

In 2020 a Scottish solicitor was fined £6,000 for social media posts between 2015 and 2018 where he made "discriminatory, sectarian, derogatory and offensive" comments about Orange Walks near his home.

Our team have seen complaints made about Surgeons to their regulator, the General Medical Council (“GMC”) about photographs the Surgeon’s friend put on their own private social media account. We have seen several similar complaints reach a hearing before a professional regulator, and albeit none were upheld, the health board, the doctor and others suffered reputational damage, but also had to deal with the stress and cost of the complaints process.

Professional Regulators and ‘boundary blurring’

Professional regulators have somewhat led the way in the blurring of the boundary between an individual’s personal and professional life, but it has spread across all industries and professions.

We can certainly see the same trends of regulator’s decisions, such as those of the GMC now applying to other industries in the UK and Scotland where either the professional regulator, the business, or its’ HR team are more willing than ever to look at the personal lives and behaviours of employees.

Sanctions are now frequently imposed by professional regulators for a variety of behaviour which “brings the profession into disrepute”. There has been a spread though where businesses themselves are more willing to reprimand employees for “bringing the business into disrepute”.

Poor behaviour and decisions can lead to negative publicity, and in turn can result in claims and complaints against the business, however perhaps more importantly, it can damage the business’ reputation and show the ‘culture’ of the business in a bad light.

No business wants to be the headline during Christmas party season. While risks can never be completed removed, they can be mitigated and reduced.

Guidance, training and culture are key in addressing the issues of behaviour within your business.

Businesses should be considering the guidance they might give to colleagues ahead of events this festive season, and businesses of all sizes should be aware of the potential risks they might face in the event that something goes wrong in terms of claims and complaints.

Consider guidance to be issued around employee behaviour and duties, but also around the practical aspects of Christmas events. For example, it might be pertinent to recommend that no one brings their work laptop to the party. If a laptop or other confidential information is lost, it can become a very expensive issue, may require the involvement of the ICO, and will certainly make for some uncomfortable conversations the morning after!

Similarly, guidance and warnings should be issued to make sure that either confidential discussions are not had in public spaces such as bars and restaurants, or if they must, that care is taken during those discussions.

Last year a director at a prominent private school in England was suspended for having phone discussions on a busy train about the health and wellbeing of specific pupils, while wearing his school ID badge and lanyard! It was unfortunate that the phone call was in the same carriage as a journalist from a well-read national newspaper.

In the Scottish legal profession, one of the first warnings you're given when travelling to other areas of the country for work is to be very wary of discussing anything on the Edinburgh to Glasgow train, which is notoriously filled with lawyers, clients and other professionals! A prominent example of why to take care with discussing confidential information is the headline, “Alex Salmond’s lawyer suspended for naming client’s accusers on train.”

Compulsory training on harassment and anti-bullying, as well as separately on data-protection, is important to keep employees up to date on the guidance. That training will ensure they are fully aware of the expectations and to ensure that these issues are kept in mind and under discussion, including the procedures for reporting issues.

Fostering a positive and forward thinking culture is also important to ensure that the company is a good place to work, while making employees comfortable.