Over the weekend, I read the sad news of the apparent suicide of Jacintha Saldanha. The facts aren’t all in yet. Reports are that Duchess Kate is pregnant and was admitted to the hospital for complications; two disc jockeys in Australia called the hospital, pretending to be Queen Elizabeth and Prince Charles. Saldanha took the initial call, the DJs convinced her they were the real deal, and she forwarded the call to another nurse who disclosed medical information about the princess. It appears Saldana took her life the next day. Three thoughts for lawyers in light of such a sad situation:
1. This was a third-party prank that illuminates the possibility of pranks in the workplace. The ManpowerGroup blog of March 29 makes a good point. Workplace humor is important for morale, but employees need to know where to draw the line. The blog suggests that employers add to existing policies and prohibit “potentially unwelcome, offensive or harmful workplace jokes or pranks.” They should detail what pranks are never allowed: those based on race, gender or other protected or physical characteristics; ingestion of unwelcome odors or substances; damage to property or a person’s reputation; and interference with another person’s ability to do his/her job.
My overall guideline: Does the action have the potential to lessen an employee’s dignity? If so, employees should not do it, and the employer should punish the action if a co-worker carries it out.
I was counseling a client that had hired an artist for a holiday party. But the artist did caricatures which, by their very nature, involve exaggerating physical traits. There was potential for hurt feelings, and the client decided to cancel the artist. When in doubt, go with decency.
2. Let’s applaud the hospital, which reportedly did not reprimand Saldanha but rather undertook a review of telephone protocol. Let me be direct: The single biggest mistake employers make is to fix blame on an employee without looking at whether the system is at fault. Trust me, if this had happened in the United States, if the employer had terminated Saldanha, and if she had sued, a good plaintiff's lawyer would ask: “You fired her, but did you do anything to fix the system or ensure the event did not repeat itself?” If the answer is “no,” a jury can conclude that the reason for her termination was not that big of a deal after all, and perhaps another (prohibited) reason was at work.
3. Here’s something for everyone who’s a co-worker to consider. Those who are the most sensitive to others’ feelings are often hardest on themselves when they make a mistake. Some people have a hard time forgiving themselves. I do not know if that is the case here. But let me make a suggestion: When dealing with a co-worker who messes up and is too hard on herself, it can help to ask her what she would tell someone in her shoes. In this situation, it probably would go like this: No one was hurt. Everyone was excited with the duchess here, so we naturally wanted to believe that the queen/prince was calling. Being embarrassed passes. Of course, employers and employees need to get help for someone who stays down and out. Once someone is gone, they are gone forever.
In the States, Saldanha's mis-step (or that of her co-worker) would be called a HIPAA violation. Working for a health-care provider, I sometimes wonder if we get too anxious about patient privacy; the Saldanha incident suggests this might be so, and to take a more common-sense attitude.
Posted by: Eric Bowen | December 20, 2012 at 03:29 PM