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Ice bucket challenge phenomenon – what employers need to know

This summer the “Ice Bucket Challenge” has been the latest internet craze to sweep the globe in the name of charity and these challenges are here to stay. As the outtake videos which have emerged show, such challenges do not always go to plan and can have serious consequences. Article by Lynsey Clarke is a solicitor at Weightmans LLP.

Ice Bucket ChallengeWhile no one wants to pour cold water on any event which seeks to raise money for charity, employers need to be vigilant to the risks which may arise if these challenges are undertaken during the working day, or in the workplace. Two main issues arise: how to prevent injuries occurring and what to do if employees undertake the challenges when they are supposed to be working. Unfortunately the ice bucket challenge phenomenon has caused a number of injuries and has even been linked to a death in the UK. In the USA, four firefighters were injured after their aerial ladder came into contact with an electricity power line after pouring water on a number of university students. These incidents demonstrate that participants’ judgment can become impaired by the need to rise to the challenge, including using digger buckets in order to pour water over participants.

If a challenge is undertaken while at work, and an injury occurs, employers could face a potential claim. If challenges are permitted on company premises they must be adequately risk assessed and supervised and employers should ensure they have clear policies which are communicated to employees. Injuries have occurred as a result of large amounts of water being dropped from a height and the risks associated with pools of water are well known and addressed in employment regulations. If an employee takes the challenge without seeking permission can an employer take action? A recent case of ice-bucket dismissal has been reported in the UK press, when a cleaning manager was sacked after undertaking the challenge at work and posting the video to Facebook. The employee was still working his probationary period, where it is a less risky time for an employer to dismiss. Where an employee has accrued two years' service, the qualifying period for a claim of unfair dismissal, an employer must tread more carefully.

For a dismissal to be fair, it must be within the band of ‘reasonable responses’. All the circumstances of the case will be considered, including the fact that the actions were well intentioned. Although this will not necessarily make a dismissal unfair if the employee’s actions were clearly dangerous or inappropriate for other reasons. Where dismissal (or any action short of dismissal) is contemplated, the case against the employee must be clear. Employers need to outline clearly from the outset exactly why carrying out the challenge was unacceptable. Is the concern health and safety or time wasting? Employers worry about the reputational damage the broadcast of ice-bucket videos might cause; caution is advised if seeking to discipline or dismiss on this basis. If the employer is not identifiable and the clip has only been broadcast to a select group (e.g. the employee’s own Facebook friends) it may be difficult for an employer to rely on reputational damage as the basis of a misconduct charge.

Consistency is key. As well as putting out a clear message regarding acceptable behaviour employers must act consistently across the board. Any disparity may result in a finding of unfair dismissal. A clearly drafted policy is invaluable in this respect. If a blanket ban seems too onerous, it may be worth introducing a policy, or amending a social media policy to include, requiring permission to undertake such challenges so that the potential risks are identified and a plan may be devised to ensure health and safety is maintained. If such challenges are to continue then it is worth devising a clear strategy now in order to prevent future mishaps.

www.weightmans.com

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