It’s fair to say that Ryanair aren’t strangers to controversy.  Whether it be their pricing strategy, public statements or otherwise, they seem to attract publicity for many reasons, whether good or bad.

Given their nature for publicity, it was perhaps predictable that the media (and social media) would seemingly target Ryanair for dismissing six staff members photographed sleeping on the floor of a crewroom in a Spanish airport.  Indeed, on the face of it, it seems bizarre to punish staff who were ‘forced’ to sleep on the floor.

However, as with most situations, there is more to the story than the headline would suggest and, dig a bit deeper, and it seems that Ryanair may actually have had legal grounds for dismissing the six staff members for Gross Misconduct based on the publicised facts.

Now, as a starting point, naturally, you can’t dismiss staff for sleeping on a floor.  That would be ludicrous and completely unfair.  But, in this case, that isn’t why Ryanair dismissed their staff members.

So, why did Ryanair sack them?  What’s the big difference?  Well, put simply, Ryanair believe that the staff members ‘staged’ the photograph and did so with a view to damaging their reputation.  And, whilst people are perhaps inclined to automatically distrust the public statements of big companies in situations like this (and, instead, support the ‘underdog’), it appears that Ryanair has a point.

How can anyone judge this?  Well, put simply, because Ryanair published a CCTV video online showing the staff standing or sitting around and then appearing to agree to the taking of a photograph.  All the staff members then move over and arrange themselves in a close formation on the floor before an individual takes a photograph of them lying on the floor (which they weren’t doing before).

Before we hit the legalities of that CCTV footage, upon sight of the CCTV video, it seems that Ryanair had more than sufficient grounds to judge that the staff agreed to take a photograph of them lying on the floor and, indeed, they only appear to lie on the floor for a limited period whilst the photo is taken.  It would also appear reasonable (and the Unfair Dismissal test involves a ‘reasonableness’ test) for Ryanair to conclude that the most likely reason for doing so would be to allow an individual to put forward that Ryanair had forced them into a situation where they had to sleep on the floor (in fact, they were moved to a VIP lounge that same morning) and that Ryanair were bad employers.

The photograph, rather foreseeably, went viral and, surely, this was the point of the set-up. If not, why not simply share the photograph privately amongst colleagues and why post it on social media?

So, yes, it was likely a Gross Misconduct offence allowing the staff involved to be dismissed. However, that’s not the end of the story.  Why?  Well, while the CCTV footage was very useful to Ryanair, it may not have been in line with data protection legislation.

This is more difficult to comment on but, unless Ryanair had taken reasonable and practical steps to inform all staff concerned that there was CCTV in the rest room at that airport (i.e. by way of pre-warning or CCTV signs within the room itself), it is unlikely that the CCTV footage meets data protection requirements and, therefore, its use could be an invasion of privacy.  Obviously, it would seem pretty unlikely that the staff would have tried to ‘stage’ the photograph if they had known that there was a CCTV camera in the corner filming it!

From a legal point of view, the dismissals may be challengeable because of the potentially unlawful use of CCTV, however, overall, it would seem likely that the dismissals would stand because, without the CCTV, it would be unlikely that Ryanair would have any fitting way to demonstrate that it was staged.  Therefore, whilst it may seem ironic that potentially unlawful CCTV can be used to support dismissal, employment law and data protection law are separate entities (i.e. the Ryanair staff could consider a separate legal challenge on data protection grounds, rather than on employment law grounds).

Overall, however, the issue seems to have turned into one of morality, particularly given the impact of the photograph on social media.  There seems little room for ‘grey areas’ in social media forums anymore: you’re either on ‘Team Ryanair’ (i.e. the staff staged the photo to cause reputational damage and should pay the penalty) or ‘Team Employee’ (i.e. the staff only staged the photo to show they weren’t in a hotel, so Ryanair are being harsh).  My view?  Well, I believe it is a grey area: whilst the employees were perhaps trying to make a point to the airline, the ‘staging’ of a photograph with intent to get it on social media and embarrass Ryanair was the wrong way to go about it and dismissal is likely to have been within Ryanair’s reasonable options.