In the US, agriculture department official Shirley Sherrod was forced to resign within 24 hours of a video being posted online relating a past incident from her career:
“I was struggling with the fact that so many black people had lost their farmland. And here I was faced with having to help a white person save their land. So, I didn’t give him the full force of what I could do. I did enough so that [he would] go back and report that I did try to help him. So I took him to a white lawyer … I figured if I take him to one of them, that his own kind would take care of him.”
Seemingly damning stuff.
As happens in the media-driven world, a storm developed almost immediately. The edited video appeared at 11.18am, and by mid-afternoon was all over the web. By the evening government officials had telephoned her demanding her resignation. She has alleged that this speed, and refusal to listen to her explanations, stemmed from the administration’s fear over the coverage they would likely receive that evening from right wing angles of the press. She later said that the under-secretary of state told her “you’re gonna have to [resign] because you’re on Glenn Beck tonight”. So she did.
But OOPS! The video of the speech had been carefully and deliberately edited. In the full speech, which came to light the next day, Ms Sherrod makes clear that she did ultimately provide all the help she could to the white farmer, and that she learned from the experience:
“But working with him made me see that it’s really about those who have versus those who don’t, you know, and they could be black, they could be white, they could be Hispanic.”
The white farmer concerned contacted CNN to say that she had, in fact, saved his farm.
So Sherrod was blameless. She had simply made a speech about her views of social justice being centred on race in the eighties, but moving to poverty based on her experiences of helping a poor farmer who was, for once, white. NAACP, the black civil rights movement to whom the speech had been addressed, said:
“she was sharing this account as part of a story of transformation and redemption. In the full video, Ms.Sherrod says she realized that the dislocation of farmers is about “haves and have nots.” “It’s not just about black people, it’s about poor people,” says Sherrod in the speech. “We have to get to the point where race exists but it doesn’t matter.”
The problem being of course, that she had already been dismissed.
Would this dismissal have been fair in the UK? The instinctive answer is that of course it would not; the law requires that:
- a dismissing employer believes the employee to be guilty of misconduct;
- had reasonable grounds to sustain that belief;
- and in the circumstances carried out a reasonable investigation.
Surely point 3 should surely fail here, given that Sherrod’s version was vindicated within 24 hours?
Might the government argue however that “in the circumstances” no greater investigation was possible? The administration was about to suffer a whole evening’s media, and next day’s newspapers, slamming it for both racism and a failure to take any action. If indeed she were guilty of the alleged racism, then it could avoid a great deal of criticism by having acted quickly and decisively. The proposition I would like to put forward, for debating purposes only you understand, is that these are legitimate reasons for an employer to curtail its investigation.
Take, for example, a company which suspects one of its employees of having stolen from a major customer. That customer is furious, and the company considers that only immediate dismissal will salvage the business relationship. The employee is dismissed, and as an explicit result of that the relationship is saved, and perhaps with it the company. This trespasses into third party / SOSR dismissal territory, but surely commercial or political pressure is a relevant factor for the third prong of the test? I’d be interested to know what people think. Is there perhaps an echo of Sharon Shoesmith here?
Happily, Sherrod has now received an apology and the offer of a new government post. Read all about her here and here.
In the circumstances, this would have been an unfair dismissal because of the speed with which the new information emerged. If she had appealed, it would have been necessary to take this information into account in deciding the appeal. Therefore, she would have to have been reinstated or else she would have been unfairly dismissed.
Yes – that’s true. But my central point is whether using reasons of political expediency, or indeed party politics (of which Ed Balls was acquitted in the Shoesmith case) would ever affect the amount of investigation which was held to be reasonable.
I agree that political expediency could at least in principle qualify as being SOSR but the circumstances would have to be pretty extreme. I would also be careful about the analogy with Shoesmith, which was largely a public law case. It was at least hinted in the judgment in Shoesmith that a claim for unfair dismissal might have succeeded.