Costa Concordia: rushing to blame an employee without knowing the facts?
Martin Pratt, January 20, 2012
At first glance it seems odd to draw parallels between Francesco Schettino, the captain of the stricken Italian cruise ship Costa Concordia, currently under house arrest suspected of the manslaughter of at least 11 people, and Brodie Clark, the former Head of the UK Border Agency who resigned on 8 November 2011 after being publicly criticised by the Home Secretary, Theresa May.
But both cases present important lessons for employers. Prior to any investigation into the alleged wrongdoing, taking place, both Schettino and Clark were publicly chastised by their superiors for perceived failings.
In the case of Clark, he resigned after May blamed him for a supposedly unauthorised relaxation of border controls at the UK's points of entry in the summer of 2011. In the case of Schettino, barely 48 hours after his ship ran aground off a Tuscan island, the owners of the Costa Concordia, Costa Cruises, publicly and explicitly blamed the Captain, their employee, for the unfolding disaster.
Of course, Clark has the benefit of the UK concept of 'constructive dismissal' and publicly stated at the time of his resignation that he intended to bring such a claim on the grounds that Theresa May's public criticism had fatally undermined the trust and confidence that he could expect to hold in his employer.
Schettino may not have that luxury under Italian Law and, given the criminal charges looming against him and the latest Italian media reports that he has apparently now admitted 'a navigational mistake', his employment law rights may be the least of his worries.
Nonetheless, the haste in which Costa Cruises rushed to blame their employee was, from a UK perspective at least, very surprising for at least two reasons.
Firstly, once again there is the issue of constructive dismissal. It is an unwritten term in all English law employment contracts that employers must not act in an irrational or perverse manner, or acting in a manner in which no reasonable employer would have acted, when it is exercising managerial discretion. Saying that an employee is at fault prior to the conclusion of any investigation that could reasonably assign such blame will, in most cases, not be a manner in which a reasonable employer would act.
Despite the horrific stories of Captain Schettino's alleged behaviour that have been emerging in the press over the last few days, if the disaster had happened in the UK, this speedy finger pointing could, theoretically, allow such an employee to resign and claim constructive dismissal. A parallel case in this country is if one of the employers had publically blamed one of the captains of the two vessels involved in the London Marchioness disaster in 1989 prior to the conclusion of any form of investigation. The safest course of action in such circumstances is to suspend a suspect employee pending an investigation and then hold a disciplinary hearing that may result in dismissal. In the meantime no public comment about the employee should be made pending the outcome of the enquiry.
The second reason why the actions of the Costa Concordia's owners were extraordinary from a UK legal perspective is the concept of vicarious liability. Schettino is the company's servant and was carrying out his duties when the accident happened. It appears that he may have been carrying out those duties in an unauthorised and negligent manner but, nonetheless, his employers are still liable (at least under UK law) for his actions in such circumstances. That would, if this disaster had happened in the UK (I make no pronouncements on the effect of Italian Law) leave the company open to a flood of claims (customer and investor actions for example) that it would then have little or no hope of defending. This is because the company had already admitted, very early on, that their servant had caused such a horrific event. As a company is vicariously liable for its servant's actions, it would be held liable.
Just as it is advised not make any admission of liability at the scene of a road traffic accident, employers should be very careful of what they say in the aftermath of something going wrong in the workplace or customer-arena. From a simple administrative error causing a customer small financial loss, to an accident involving personal injury or loss of life, until the facts have been ascertained in a proper investigation, no public comments placing blame for the incident should be made.
Best practice in drama situations is to withhold comment on causes and, particularly, blame. It is fine to express regret for an incident that has caused loss of life or public furore, to express concern for customer safety and wellbeing, and talk about steps being taken to investigate a problem, check company procedures and to stabilise a situation for the future. These do not carry the same legal ramifications. But rushing to employee judgement is not so smart until all the facts are weighed and known - from a legal perspective as well as in the eyes of customers and other staff. Employers would be wise to remember 'only fools rush in where angels fear to tread.'
Martin Pratt, employment lawyer Kingsley Napley