December 7, 2022

Here’s the second installment of my newsletter. I surprised myself and decided to write this installment on an actual employment law topic.

Most of us know that employment laws are different between the US and most countries, especially in Europe. Employment relationships are presumed to be “at-will” in all U.S. states except Montana.[1]  The U.S. is one of a handful of countries where employment is predominantly at-will.  Most countries throughout the world allow employers to dismiss employees only for cause.   Some reasons given for our retention of the at-will presumption include respect for freedom of contract, employer deference, and the belief that both employers and employees favor an at-will employment relationship over job security.   None of that probably is true, but you know lawyers always come up with a reason for anything.

Today I’m musing about two recent cases from Europe that have caused some stir here on this side of the pond.

The first case involves Mr. T in France. No, not that Mr. T, fool. Our French Mr. T A alleged that his employer terminated him because he was too “boring.” (If that was a basis for termination, my wife could have terminated me long ago). Cubik Partners, a management consultancy firm, says it uses a “fun” approach to its team building —The Company required employees to participate in team-building exercises that included “excessive alcohol intake” and sharing beds with co-workers. According to the court, “the company engaged in ‘humiliating and intrusive practices regarding privacy such as simulated sexual acts, the obligation to share a bed with a colleague during seminars, the use of nicknames to designate people and hanging up deformed and made-up photos in offices.” Wow, how fun is that?

The company fired Mr. T for “professional inadequacy,” accusing the employee of being boring. The Company also claimed that Mr. T was a poor listener and difficult to work with. Conversely, T claimed he was entitled to “critical behavior” and to refuse company policy based on incitement to partake in “various excesses.” Sacré bleu!!

The French court found in favor of Mr. T, saying that he had a fundamental right to dignity and respect of private life, adding that the employee was expressing his freedom of expression by not taking part. The court awarded Mr. T a paltry $3100 in damages, but T is seeking almost another 500k in damages to cover his legal costs and loss of future earning which will be addressed in a future hearing (if you ask me, the employer would be wise to settle before then).

While there are no laws in the US that say an employer cannot fire an employee for being “boring,” the conduct of the employer would likely arise to harassment,[2] assault[3] or intentional infliction of emotional distress [4] under US law. And whether in the US, France, or virtually anywhere else, no reasonable employer could think it’s a good idea to require its employees to engage in such behavior.

Meanwhile, to the north of France, in Dublin, Ireland[5], an employee sued his employer because his job is too boring, despite making almost $130,000 per year. Dermot Alistair Mills sued his employer, Irish Rail, claiming his duties had been dramatically reduced after he engaged in whistleblowing nine years ago. Mills claims he spends most of his time “reading the paper, eating sandwiches, and going for a walk.” Mills testified that “I’d say if I got something that requires me to do work once in a week I’d be thrilled.”

Irish Rail does not deny that Mills engaged in protected whistleblowing but claims it did not retaliate against him for doing so.  Mills told the tribunal that he was given responsibility for capital budgets worth in the region of $300 million from the turn of the millennium until the financial collapse in 2007. He reported to the Irish Rail board and participated in board sub-committees and was promoted in 2010. 

However, he claimed he was bullied in his new role and forced to take three months’ sick leave in 2013. When he returned to work, he was told he would have the same salary and given the responsibility of a finance manager in charge of fixed assets worth billions in addition to the company’s debt portfolio. He would also be charged with preparing reports for the Irish Government. 

He said he noticed “certain issues” with debtors after returning to work and tried to “raise red flags all over the place”. He wrote a “good faith” report to the Irish Rail chief executive in March 2014 before making a protected disclosure to the transport minister in December of the same year. Mills claims he was stopped from taking responsibility for Irish Rail’s fixed assets after making the report, adding that he has also lost the responsibility for preparing reports for the Irish Government soon afterward. 

He told the tribunal that he has only had to manage a debt portfolio worth roughly 9.75 million, which is now down to roughly 500k. Mills says “I started off with what seemed like a reasonable remit in 2013 and 2014. Slowly, but surely it was hacked down to nothing.” 

He said he has felt “isolated” at his job site since making the complaint in December 2014. He claims he has been excluded from company meetings and training opportunities since making the disclosure and said the issue held him back when he interviewed for a more senior role in the summer of 2018. The company’s position is that none of the interviewers were aware of Mills’ disclosure. 

Mr. Mills goes on to say “If I go to the office, I go in for 10am. I buy two newspapers, the Times and the Independent, and a sandwich. I go into my cubicle, I turn on my computer, I look at emails. There are no emails associated with work, no messages, no communications, no colleague communications.”

Mills says “I sit, and I read the newspaper and I eat my sandwich. Then about 10.30 am, if there’s an email which requires an answer, I answer it. If there’s work associated with it, I do that work. “He says he goes for his lunch at around 11.30am or 12.30pm and spends “an hour or two” walking around, before returning to work around 2.30pm or 3pm.He then told the hearing: “If there’s nothing to be done, I go home.”

Mills’ hearing has now been adjourned until likely February 2023 when the employer is expected to present more evidence.

While many may not feel sorry for someone making 130k per year and doing nothing for it, how would this case play out on this side of the pond? Well, if an employer reduced an employee’s job duties after the employee engaged in protected whistleblowing, that would almost be certainly construed as unlawful retaliation. While keeping the person employed might allow the employer to avoid liability for back pay or back pay, the employer could still be liable for attorneys’ fees, and for “compensatory” (emotional distress) and punitive damages. And making an employee come to work every day while everybody ignored him and gave him no work to do could arguably be considered a “constructive discharge” (deliberately making work conditions so intolerable that a reasonable person would feel compelled to resign), which has the same legal effect as terminating the employee. And acting in this manner could make an employer even more vulnerable to emotional distress or punitive damages than if the employee were simply fired.

So bottom line be careful in the US or Europe if you fire an employee for being boring or allow an employee to be bored at work!

[1] Sorry, since this is a musing on a legal topic, I’ve resorted to footnotes- – well, excusez-moi .   Moose, like sharks, get a bad rap. Not generally fierce or mean, they docilely mind their own business. But unless they are cornered or interfered with, they will charge. Their size is most intimidating. In Montana, the Shiras Bull Moose is the smallest of the subspecies and could weigh approximately 1,000 pounds with an antler span of four-five feet. Maybe that’s why Montana is the only State that by statutory law requires just cause to terminate an employee.

[2] In employment law, harassment is a form of employment discrimination in violation of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), and the Americans with Disabilities Act of 1990 (ADA). Harassment is defined as offensive, unwelcome conduct based on a victim’s protected characteristic, that is so severe or pervasive that it affects the terms and conditions of the victim’s employment. Harassment may take the form of words, actions, gestures, demands, or visual displays, such as photographs or cartoons. 

[3] Assault is generally defined as an intentional act that puts another person in reasonable apprehension of imminent harmful or offensive contact. No physical injury is required, but the actor must have intended to cause a harmful or offensive contact with the victim and the victim must have thereby been put in immediate apprehension of such a contact.

[4] The tort of intentional infliction of emotional distress occurs when one acts abominably or outrageously with intent to cause another to suffer severe emotional distress, such as issuing the threat of future harm.

[5] Who says I don’t know my European Geography? That will be European Geography for $400, Alex.