The kiss cam video of US tech firm Astronomer’s married chief executive Andy Byron cuddling the company’s head of HR Kirstin Cabot at a Coldplay concert went viral a few weeks ago. I’ve been asked this question a few times since.
If the Coldplay cuddlers had been employees in England and Wales rather than in America would it have been unfair dismissal if they had been sacked for what they did?
In America, employment is at will, meaning employees can be dismissed for no reason and without formal process, provided there is no discrimination and provided their contractual rights to notice are met.
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American employees do not have the statutory right of unfair dismissal that employees in England and Wales with more than two years’ service have. For a dismissal to be fair in England and Wales there has to be a fair reason for that dismissal and a fair process must be followed.
Most senior 海角视频 employment contracts include provisions that stipulate the duties of executives during their employment and these include catch all provisions that the executive will:
- Use their best endeavours to promote, protect, develop and extend the business.
- report their own wrongdoing and any wrongdoing or proposed wrongdoing of any other employee or director immediately on becoming aware of it.
- comply with company policies in place from time to time.
In addition, handbooks often have value statements of the principles of the employer and these generally include integrity, respect, honesty and accountability.
Value statements typically include a statement that employees are expected to hold themselves to the employer’s values.
Although I don’t regularly see personal relationship policies in handbooks, some companies do have them.
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In broad terms, in the 海角视频 at least, personal relationship policies do not ban personal relationships altogether and are rather more practical. They acknowledge that personal relationships do happen at work but point out that they do cause legitimate concern for management for the following reasons:
- Lack of transparency in relation to workplace matters.
- Risks to the confidentiality of business information.
- Legal risks regarding discrimination and harassment.
- Potential conflicts of interest of those involved in personal relationships.
- Actual or perceived bias regarding recruitment, promotion and appraisals.
- Potential for negative effect on general public perception of fairness, objectivity and impartiality.
- Embarrassment of other staff.
- Fear of favouritism by other colleagues.
- General adverse impact on team dynamics and reduction in team morale.
The policies recommend that parties advise HR when they embark on personal relationships with work colleagues and if one party is line managing the other this disclosure is stipulated to be mandatory, so that the reporting structure can be changed. The policies steer clear of dealing with the situation if either or both of the parties is married.
Had this situation crossed the desk of an employment solicitor based in England and Wales they would have asked to see all relevant paperwork, in particular the contracts of employment and any handbook. As happened in New York, the employees would both likely have been suspended on full pay pending an investigation into the situation.
My view is the investigation would have found a disciplinary case of gross misconduct to answer against both employees based on a combination of conduct that brought the company into disrepute, not acting in a way that promoted the best interests of the company and for failure to comply with the company’s values. - potentially fair reason for dismissal
. However, a fair process would still need to have been followed, so it doesn’t follow that disciplinary action would have inevitably led to a gross misconduct dismissal. That would be determined after full investigation and a disciplinary hearing based on all the facts, which we are not privy to.
In practice, the possibility of pursuing an unfair dismissal claim is not the focus of highly paid executives in these situations. Regardless of how much you earn the maximum award for unfair dismissal is currently capped at £118, 223.
This is a lot of money to most of us, but for highly paid executives it often represents just a few months’ salary. What highly paid executives are usually focusing on is the shares they hold in the business and the impact on those of a dismissal for gross misconduct.
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A venture capital backed business like Astronomer would typically have good leaver and bad leaver provisions in their articles of association and shareholder agreements under which a dismissal for cause would require them to transfer their shares back to the company for very low value, losing their stake in the business and the growth they had helped build before their dismissal, of far greater value than an unfair dismissal claim..
My guess is that Andy Byron would have offered to resign provided the board agreed to exercise its discretion to allow him to be classed as a good leaver and keep his shares. Kirstin Cabot’s resignation followed a little while later – possibly she requested a payoff to go on terms, possibly she was offered one to avoid potential claims and more bad publicity.
I doubt either of them is going to be talking publicly any time soon about what happened, leaving Astronomer free to enlist the support of temporary spokesperson Gwyneth Paltrow to post on social media a very clever public relations video. With over 36 million views on X alone, Andy Byron might well have argued that his Kiss Cam cuddle was actually in Astronomer’s interests as we now all know the company’s name and what it does, even if we don’t quite understand what data orchestration involves.
Bethan Darwin is a partner with law firm .