Employment Partner, Susan Thompson, and Associate, Andrew Lloyd, comment on a recent newspaper report in which it is alleged that TikTok has developed a “kill list” of employees that the video streaming site wants to “manage out” of its London office.
The allegations have been strongly denied by TikTok, which said it was unable to find any list that matched this description and that “any such list, terminology or purpose would not be condoned or in accordance with our internal policies on probation and performance management”.
Allegedly, this “kill list” contains at least a dozen names, including some new hires. The newspaper reports that people unfortunate enough to find themselves on this supposed list are allegedly being singled out and reprimanded unfairly, as some have reported their roles being changed without warning and believe that they are being “set up to fail”.
It is not unheard of for employers to “manage out” employees for various reasons, and whilst the FT article does not state why these individuals have been allegedly singled out, we will explore where this may be unlawful in theory.
This is particularly relevant for employees with more than two years’ continuous service, as they have a right not to be unfairly dismissed within the meaning of the Employment Rights Act 1996 (“ERA”).
For a dismissal to be fair under the ERA, it must be for one of the five potentially fair reasons: conduct, capability, redundancy, illegality and some other substantial reason. Purely subjective reasons such as considering an employee not to be a “good fit” are insufficient. In addition, the employer must follow a fair process.
In some cases, employers attempt to create a fair reason or use a potentially fair reason to justify dismissal in unfair circumstances. For example, an employer may use a redundancy situation as an opportunity to remove difficult employees. However, TikTok’s London office is growing rapidly. At the time of writing, there are 200 open positions advertised on TikTok’s website in London alone. Accordingly, if TikTok is seeking to “manage out” certain employees, and it is important to mention again that they deny this, it will not be credible to use redundancy as a reason unless there has been a reduction in work of the particular kind that the individual has been hired to perform or a change in the location the work is to be performed work.
Using conduct, illegality or some other substantial reason to justify dismissal would also be difficult. Misconduct is less subjective than capability and any employer would find it hard to formulate this. The same is true for anything that could justify a dismissal for some other substantial reason. Illegality is rarely used. So, if TikTok is trying to manage people out (something that it strongly denies), it makes sense that it would seek to rely on capability.
To fairly dismiss an employee for capability, an employer needs to demonstrate that it has serious concerns about performance. However, poor performance is subjective. When looking at the fairness of a dismissal, an Employment Tribunal will not ask itself what it would have done but, rather, whether any reasonable employer could have reached the same decision (known as the “range of reasonable responses test”). In practice, this makes it difficult to challenge the reasonableness
of a dismissal.
Furthermore, it is not difficult to find examples of poor performance if actively looking. Few employees could say that their performance would escape criticism if their employer went through their work with a fine-tooth comb. If an employee is set up to
fail, then any performance-related dismissal is unfair. However, short of strong evidence, any such allegation will be difficult to prove.
While fair dismissal for capability requires a formal performance improvement plan (which can take several months), some employers may hope that by undermining confidence, employees will leave voluntarily (or agree to sign settlement agreements).
A version of this article was first published in the HR Magazine.