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The ice-bucket challenge – avoiding legal slip-ups

This summer the 'Ice Bucket Challenge' has been the latest internet craze to sweep the globe in the name of charity.

This summer the “Ice Bucket Challenge” has been the latest internet craze to sweep the globe in the name of charity. The phenomenon is not over yet, and may give rise to copycat campaigns. Participants from every walk of life, from pop-stars to politicians, have volunteered for a soaking. Even employment lawyers, badgered by their children, have taken part. I speak from experience!

However, as the outtake videos show, such challenges do not always go to plan and can have serious consequences.  While 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 on work premises. 

Two main issues arise: how to minimise health and safety risks and what, if any, action employers can take if an employee undertakes a challenge when they are supposed to be working. Employers should also be mindful of the risk of discrimination.

The risk of injury

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. Participants have gone to increasingly risky lengths to ‘stand out’, for example using machinery such as diggers to pour out the water. These incidents demonstrate that participants’ judgment can become impaired by a desire to ‘rise to the challenge’.

If a challenge is undertaken while at work, and an injury occurs, an employer could potentially face a personal injury claim. If challenges are permitted on company premises they must be adequately risk assessed and supervised. It would also be advisable to double check any relevant insurance policies before granting permission for the activity to go ahead.

Injuries have occurred as a result of large amounts of water being dropped from height and the risks associated with pools of water are well known and addressed in employment regulations. Permission for a challenge to be carried out at work should include a stipulation that the area is cleared and made safe following use. Ideally, employers should ensure they have clear policies which set some parameters and are communicated to employees. 

Disciplinary action?

If an employee takes the challenge without seeking permission can an employer take action? There are a whole range of reasons why they might wish to do so.

As well as creating a safety risk, carrying out a charity challenge in work time may impact on productivity. As well as the working time of the employee getting soaked, a challenge carried out at work may create a ‘domino effect’ of time wasting as colleagues assist with the drenching, view online footage and in turn are themselves nominated.

At least one recent case of ice-bucket dismissal has been reported in the UK press, when a Fleetwood cleaning manager was sacked after dousing himself at work and posting the video to Facebook. Interestingly however, this employee was still working his probationary period, a time when employees are expected to be on their ‘best behaviour’ and it is less risky for an employer to dismiss. Where an employee has accrued 2 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. The fact that an employee’s actions were ‘well-intentioned’ will be considered by a Tribunal as one factor among many and will not necessarily make a dismissal unfair if the employee’s actions were clearly dangerous or inappropriate for other reasons. 

Where dismissal, or 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, timewasting or a different issue?

It is also important to guard against over-reaction. Is dismissal really warranted or would a lesser penalty be a more proportionate response? As ever, the employee’s length of service and conduct history should be considered.

Many employers worry about the reputational damage the broadcast of ice-bucket videos might cause. However 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. If no real ‘harm’ has been done to an employer’s brand, invoking a disciplinary process in these circumstances might be ‘using a sledgehammer to crack a nut’. A dismissal related to a charitable activity of course bears its own risk of adverse publicity.

Consistency is also of key importance. In the Fleetwood case, it was alleged that another employee had carried out an identical challenge but remained in post. As well as putting out a clear message regarding acceptable behaviour employers must act consistently across the board. Any disparity may lead a Tribunal to find a dismissal unfair. A clearly drafted policy is invaluable in this respect.

Peer pressure?

The ice bucket challenge has spread like wildfire because every participant nominates three others to take the challenge. Whilst a nominee can refuse to accept, there can be considerable peer pressure to take part. 

Where a challenge is ‘doing the rounds’ in the workplace employers should be mindful that such pressure could cross the line into bullying and harassment. For example, if a particular employee is ‘targeted’ with nominations from a number of colleagues, or is badgered to take part despite clear resistance, this may well create a hostile and intimidating atmosphere that both goes against the spirit of the challenge and fits the definition of harassment for the purposes of employment legislation.

When drafting or amending policies, it might be helpful to remind employees that participation is entirely voluntary and that nobody should be pressurised to take part. Similarly, if an ‘organised’ challenge takes place at work, employees should not be reprimanded or made to feel excluded for failure to ‘join in’.

As ever, it is important to keep a handle on workplace ‘banter’ that might upset or offend. In particular, it is easy to envisage remarks being made that might be construed as discriminatory on the grounds of sex or might make female employees feel uncomfortable (‘wet t-shirt competition’ anyone?).

Similarly, there is a risk of discrimination on the grounds of other protected characteristics. For example, it might be unacceptable to ask  an employee to undertake the ice bucket challenge if their religious beliefs, place emphasis on modest dress and behaviour (particularly amongst women).

It is important to remember that the charity behind the challenge might sit uncomfortably with the beliefs or values of some employees. Whilst such instances will be rare they are not unheard of. For example, some Catholic clergy in the USA have reportedly discouraged parishioners from participating in the ice bucket challenge on the basis that money raised might be used to fund stem cell research. Allowing employees to donate to a charity close to their own hearts is of course the easiest way to get round this problem.

Policy possibilities

A blanket ban on online challenges at work is of course the easiest and safest route. However, if this seems too onerous, there are other less drastic ways of introducing some regulation. Perhaps an existing social media policy could be amended to cover the creation and sharing of charity challenge videos? An employer could consider amending its corporate social responsibility (CSR) policy to make clear that employees require permission to carry out fundraising activities on site? A Health and Safety manual might be updated to cover the risks associated with online crazes or a disciplinary policy tweaked to encompass social media issues. There is plenty that employers can do without adding a further ‘stand-alone’ policy to their armoury.

If, as predicted, such challenges are here to stay it is worth devising a clear strategy now to prevent future mishaps.

Embracing the trend

Of course, another option open to employers is to embrace the trend. Handled carefully, an online challenge can be a great excuse for teams to get together and have some fun. In particular, getting managers involved can help to cement workplace relationships. There might even be scope to get Clients involved as part of your firm’s CSR strategy. An ‘official’ ice bucket challenge video posted to your organisation’s social media feed could be a fantastic free marketing ‘hit’.

Whether we like it or not, workplace charitable activities bring with them an increased risk of claims. However is certainly possible to keep control of online challenges without being a wet blanket.

Stuart Jones is our Head of employment and pensions, based in our Liverpool Office stuart.jones@weightmans.com.

A version of this article was first published in the Employment Law Journal in October 2014.

Visit www.lawjournals.co.uk for more information about Employment Law Journal and other publications by Legalease.