Behaving badly - what can employers do about conduct outside of work?
Author: Simon Fennell
Applies to: England, Wales and Scotland
Media reports of football violence or other anti-social activity may be shocking for many but, what if that coverage included one of your employees? What can employers lawfully do about bad behaviour outside of work?
It's none of our business, right?
Wrong! Since 1976 the Courts have been willing to allow employers to take action relating to outside work activity 'so long as in some respect or other it affects the employee, or could be thought to affect the employee, when he is doing his work.'
So how close does the connection have to be?
The more serious the behaviour and the stronger connection to the job, the greater the justification for disciplinary action; an employee employed as a general labourer who is involved in anti-social behaviour on a Saturday night is less likely to be dismissed than an individual who is employed by a children's retailer who receives a non-custodial sentence for sexual offences.
Incidents that take place between colleagues who regularly socialise together outside work could also result in disciplinary action. In the 1995 case of Eggleton v Kerry Foods Ltd an employee who was involved in a fight with another colleague following a long-running dispute over a girlfriend, was held to be fairly dismissed even though the fight took place in a car park away from the workplace. The tribunal accepted the rationale that as the (victim) colleague no longer felt safe at work, there was sufficient connection to sever the trust between the employer and employee.
Football hooliganism is serious enough then?
You might think so but other factors would have to be present to justify a dismissal. For example, where there was no means of identifying an individual as an employee working for a particular organisation, there could be no argument to say that their behaviour had impacted on the reputation of the business. It would be much easier to take action if a conviction for, or clear demonstration of, violence showed that the individual could no longer be trusted where their job was likely to involve confrontation. Roles such as a door security supervisor would be relevant examples.
Do we have to wait for the Police to complete their investigations?
Not necessarily. As with any dismissal, an employer is obliged to conduct its own investigation and satisfy the usual employment tests. However, the employer may find that they are prevented from speaking with the employee as a result of bail conditions or because the employee refuses to speak in case they incriminate themselves for the criminal proceedings. However, the reasons behind the inability to conduct a full investigation may well be relevant to the employer's consideration in their own right.
In many sectors, reputation is everything and therefore any conduct that is likely to have a serious impact on the reputation and brand can, and should, be taken very seriously. Social media can play a part in linking employer and employee with associated damage to brand reputation a genuine issue. However, an employer who unreasonably relies on the possible damage to reputation risks dismissing unfairly if they fail to consider the matter carefully and make a decision based on assumptions which cannot be backed up with convincing evidence.
Employers should always avoid knee jerk reactions and give careful thought to how any bad behaviour impacts or may impact on the business or the relationships within the business.
Where there is a case to answer the usual disciplinary process should be followed with the employee being fully informed of the employer's concerns and given the opportunity to rebut any allegations or make mitigation arguments.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.