What can an agency do when a staff member’s private life threatens to impact negatively on the future of the business?
Creative and media agencies have been having a pretty rough ride in the press in recent weeks with both Manchester-based creative agency LOVE and Glasgow-based events and fashion PR company TFF hitting the headlines for all the wrong reasons.
LOVE’s MD Alistair Sim resigned from the agency he co-founded having pled guilty to the charge of assault occasioning actual bodily harm on his partner and was given a four month suspended prison sentence, meanwhile north of the border PR director Ejay McEwan, who worked for TFF, resigned following a claim that she stole a £600 designer handbag while at a glitzy party. Both highly emotive issues, that surely cannot simply be put down to the amount of free champagne that had been glugged prior to the incidents and which cast serious doubt over the involved person’s ethical code.
The story about Sim’s abuse charge and sentence was broken by the Stockport Press on Wednesday 26 November. By 5pm that same day Sim had departed from LOVE and the agency was in full reputation rescue mode as it issued a statement outlining his immediate departure and how the agency would continue without its former front man.
It followed this statement up a few days later with the appointment of Richard Hall and Chris Conlan as joint managing directors who would take over the role previously held by Sim.
The story involving McEwan was carried on the front page of Scottish tabloid The Daily Record on 2 December, which several figures within the industry have said was ‘blowing the situation out of all proportion’ and questioned whether or not the reporting had more political and business motives at heart.
Companies working within a media environment are arguably more at threat from potential scandal becoming common knowledge as they are in direct contact with the various business titles in which they themselves court coverage. These agencies will find it nigh on impossible to keep such stories from being published, therefore action must be taken as soon as possible to try and head off as much negative impact on the business as possible.
Charles Tattersall, managing director of Manchester-based PR consultancy Citypress, says that the trust between an agency and its clients must always be the company’s main consideration when members of staff step out of line and jeopardise future relationships. Any employee at any level must therefore consider the reputation of their company and how their own personal fall from grace may impact upon that reputation.
He says: “Effectively that trust is integral as part of the relationship because clients come to them for information and want their advice and there needs to be real integrity,” says Tattersall who also points out that this is true for companies across any industry, not just within media.
He continues: “It’s difficult for anyone to be operating within an agency when they have a criminal record or they have legal action against them. It’s untenable. If anybody here [Citypress] for instance loses their driving license because of drunk driving then they are instantly dismissed. It counts as gross misconduct. We wouldn’t employ anyone that has happened to either.”
Susie Fraser, director of Smarts, believes that whatever communications strategy a company employs when it is in disaster recovery mode – such as LOVE and TFF – it must be seen to be acting decisively.
“There is always a judgment call to be made in protecting your business and looking after the welfare of your staff member who may or may not be wrongly accused of doing something outside the workplace.
“Taking swift action is the first step and can help limit any potential damage to your reputation. It would always be preferable to be direct, honest and transparent so that staff, stakeholders and clients know if the matter is likely to get out via the media. Fundamentally it’s about balance and keeping the best interests of your business at the heart.”
But should this action always mean that the individual involved must depart from the company as soon as possible in order to minimise the impact upon the reputation of their employer? Or can such matters be professionally swept under the carpet only for the guilty party to carry on as before?
Graeme Isdale, managing director of Trimedia Scotland, believes that in the case of Alistair Sim, there was no choice and that the agency acted correctly in its handling of the situation in the way that it did.
Isdale says: “The bottom line is that what he did was utterly inexcusable. The agency took the appropriate action, which they did with his cooperation because he agreed or volunteered to resign. Whether that was thrashed out behind closed doors or it was an easy, natural process, the reality was that it was the right thing to do under the circumstances. What the agency did very well in its statement was that they made it perfectly clear that they could not condone Alistair Sim’s actions however it moved quickly to ‘ringfence’ the impact of his resignation by giving topline reassurances to clients that there would be no impact on the quality service that the agency provided to its client base.”
Isdale also believes that it is imperative that all companies protect themselves from any indecision and, in advance, put into place agreed procedures to be followed by the company should a member of staff’s personal life threaten to bring the business into any possible open disrepute.
Tattersall agrees with Isdale’s take on the situation, and says that in terms of the handling of the matter, LOVE has gone about protecting its reputation as best it could, but the impact that such a scandal will have on Sim’s own future career only time will tell.
A poll on The Drum’s website asking if there is any way back into the creative industries in the north west for Sim saw 44% of the 350-plus respondents saying no because his crime was too series. 34% of respondents felt that he could re-emerge on the scene as long as it remained a one-off incident, while 23% said he might be able to return to the industry as long as he handles the situation well in the first few weeks.
Tattersall says: “It can affect people’s careers long term, but they can resurface as people have got very short memories. Alistair’s situation may well see him go to ground for six months but he may well re-emerge in a new role at LOVE and things might be forgotten. In his case though it will be very difficult for him to be associated so fully with the agency as clients will take a moral view on what he did. But the level of severity of the case dictates what people should do as well. Such a thing as physical assault would make it difficult to work in a public role with an agency again.”
All PR experts are in agreement that to attempt to cover up any story is a mistake and that by facing the truth and being as open as possible with the enquiring media is the best method in attempting to minimise further tarnishing in the press.
Isdale concludes: “Obviously it is important that clients are given the type of reassurance that LOVE gave and I’m presuming that they did so on a proactive basis. I would advise that rather than wait for the press to publicise the resignation and publicise the court action, the agency proactively communicated with their clients and with their stakeholders, including their own employees.”
The legal perspective
David Hoey, Partner, Brechin Tindall Oatts
It is never easy to deal with an employee who has fallen foul of the law for whatever reason, so what can an employer do if they discover an employee or prospective employee has a criminal record?
While socially and professionally it is a thorny issue, the law itself treats convictions that have become “spent” differently from those which have not. The most important thing for any employer to do if they discover an employee has a criminal conviction is to ensure that a fair procedure is adopted when dealing with these issues.
The Rehabilitation of Offenders Act 1974 says that a person who becomes rehabilitated shall be treated as a person who has not committed the offence. The length of time it will take before an offence is spent depends on the nature of the crime and sentence imposed. Some convictions never become spent and in some cases it is unlawful to employ people with certain convictions.
Nevertheless, when a conviction is spent, it need not be declared when applying for most jobs and it is unlawful to discriminate against a person because of it. A dismissal for a reason related to a spent conviction could be unfair.
When returning to the industry, a person with a spent conviction is therefore entitled to be treated as if the conviction did not exist. Whilst this can be difficult in practice, discrimination on grounds of a spent conviction can be costly. Interesting legal issues arise where the employer believes the business would be at risk if the conviction is ignored. Sadly, the law provides the employer with no defence and legal advice should be sought to minimise the risk and identify the best way forward.
In contrast, where a conviction is not spent, an employer may dismiss because of it but the dismissal is not automatically fair. Difficult issues often arise in practice where an employer discovers a conviction after the employee has started work. In some cases employees are found to have lied about their convictions during the recruitment process. In these cases, it may be possible to dismiss fairly (relying on the failure to tell the truth and the impact on the business). However, employers do need to tread carefully, especially for staff with sufficient service to claim unfair dismissal, since in those cases an Employment Tribunal will require to be satisfied that the employer acted fairly and reasonably in dismissing. Often a balance needs to be struck between the interests of the business and the employee’s livelihood.
Employers should ensure that appropriate recruitment processes are in place to secure the right information at the right time, ensuring that such information is properly considered and fairly processed. In most cases, employers are prohibited in law from discriminating against those with spent convictions and employers should ensure that no discrimination takes place.
Specialist employment law advice may need to be taken where conflict between those rights and the needs of the business arises. For those whose convictions are not spent, a commercial decision needs to be taken in the interests of the business.